by Jon Sanders
Research Editor and Senior Fellow, Regulatory Studies, John Locke Foundation
Clyde Wayne Crews Jr. writes in Forbes about Pres. Joe Biden’s rollback of Pres. Donald Trump’s efforts to fight regulatory dark matter. It’s a disturbing act for a president to beat back transparency and restore ruling in the shadows by guidance documents, interpretive statements, memos, and other things never formally introduced as rules.
One of Biden’s revocations is particularly significant because it is unfolding before our, and policymakers’, eyes. It and involves agencies removing from public view information that is—or was—readily available largely because of Trump. This ill-advised Biden revocation was of Trump’s October 2019 Executive Order 13891 called “Promoting the Rule of Law through Improved Agency Guidance Documents.”
Let’s back up just a bit to explain this.
The Trump administration took more explicit steps than any predecessor to address the proliferation of federal agency guidance documents. Guidance documents consist of the thousands of sub-regulatory memoranda, notices, administrative interpretations, decrees and various other forms of regulatory dark matter that can have regulatory effect despite that being against the rules. …
[T]he monitoring of guidance documents is important since agencies discouraged from or reluctant to issue ordinary notice-and-comment regulations may rely more heavily on sub-regulatory guidance.
Rollout and maintenance of any new regime like the American Family Plan Biden is unveiling in his address to Congress will be heavily driven by guidance document.