Obama’s policy of legislating by letter is wrong and Jeff Sessions has vowed to stamp out the unlawful practice. For years, the Justice Department has improperly imposed “new obligations” on parties “outside the executive branch” that are supposed to operate independently. On Thursday, the DOJ revoked “more than two dozen Justice Department guidance documents going back to the 1990’s on various topics.” One reversal issued this week instructs courts across the country to tear up Obama’s limits on the sentences they can impose.
The department promises things will be different under Trump, “This Department of Justice will not use guidance documents to circumvent the rulemaking process, and we will proactively work to rescind existing guidance documents that go too far.” Any guidance “that is outdated, used to circumvent the regulatory process, or that improperly goes beyond what is provided for in statutes or regulation should not be given effect. That is why today, we are ending 25 examples of improper or unnecessary guidance documents identified by our Regulatory Reform Task Force led by our Associate Attorney General Rachel Brand. We will continue to look for other examples to rescind, and we will uphold the rule of law,” Sessions announced.
Last month, the department issued a press release outlining the change in policy. “In an action to further uphold the rule of law in the executive branch, Attorney General Jeff Sessions issued a memo prohibiting the Department of Justice from issuing guidance documents that have the effect of adopting new regulatory requirements or amending the law. The memo prevents the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations.”
“The long-standing abuse of issuing rules by simply publishing a letter or posting a page,” has ended, Sessions vows. “Congress has provided for a regulatory process in statute and we are going to follow it. This is good government and prevents confusing the public with improper and wrong advice.”
Without involving Congress, Obama effectively made new laws. “Guidance documents can be used to explain existing law but they should not be used to change the law or to impose new standards,” associate AG Brand explains. “The notice-and-comment process that is ordinarily required for rulemaking can be cumbersome and slow,” she acknowledges. Still, that is not an excuse to cut corners. Proper lawmaking procedure “has the benefit of availing agencies of more complete information about a proposed rule’s effects than the agency could ascertain on its own.”
A perfect example of an over-reaching guidance document concerns a letter Obama sent in March of 2016 to “courts and chief judges in every state” that restricted Judges’ ability to perform their duties. The letter claimed that the Obama Justice Department “had a strong interest in protecting citizens’ rights.” Warning local courts “against using the fees to try to raise revenues for their jurisdictions,” the courts were discouraged from “imposing stiff fees and penalties on poor defendants.” According to Obama, “courts were obligated to consider whether defendants were able to pay their fines” and “judges should not use driver’s license suspensions as a punishment for missed payments.”
Guidance letters are only supposed to explain how the department views the way the subject fits in with the Constitution and other federal laws, they don’t have “legal force.” Even so, “they carry an implicit threat that parties that do not follow their recommendations might face federal lawsuits or a loss of federal aid.”
Right after Trump took office, one particularly offensive Obama guideline was the first to go. “A letter jointly issued by the Departments of Justice and Education in May 2016 that urged local school districts to allow transgender students to use the restrooms that correspond with their gender identities.”
The 25 documents canceled this week make a 200-page pile of paper. Most are dull, dusty and obscure but a couple are noteworthy. A Reagan-era “industry circular” was eliminated, written by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, “saying it was illegal to ship certain guns to buyers across state lines.”
Another was a decision by the Civil Rights Division of Obama’s DOJ from October of last year. “It advised public programs for employing people with developmental disabilities to modify their policies and practices, where reasonable, to better integrate their beneficiaries into mainstream workplaces.”
Vanita Gupta was president of the Leadership Conference on Civil and Human Rights and served as the head of Obama’s Civil Rights Division. She is the one who sent out the court fines and fees letter. “It came about, she said, “because states and cities around the country wanted guidance after the department’s Ferguson report about what federal civil rights and constitutional law required.”
She isn’t very shaken up that her guidelines just got shredded though. “The retraction of this guidance doesn’t change the existing legal framework. He can retract the guidance but he can’t change what the law says.”