Trump’s New Executive Orders To Restrain the Administrative State

Trump’s New Executive Orders To Restrain the Administrative State, by Michael Degrandis.

Given that, throughout the West, we are actually mainly governed by bureaucrats of the administrative state, this is a very big deal. Doubtless it will go unreported in the mainstream media. Trump’s action rolls back some of the slow-motion usurpation of the power of the elected representatives by those allies of the left, the bureaucrats.

Federal agencies issue memoranda, notices, letters, bulletins, circulars, directives, and blog posts (among other things) to evade the rulemaking process established by Congress in the Administrative Procedure Act (APA).

Agencies euphemistically refer to these documents as “guidance.” Guidance has been responsible for revoking permits to conduct business, barring Americans from working in their chosen occupations, prohibiting taxpayers from taking deductions, levying post-conviction penalties for crimes, and seizing property, without statutory or constitutional authority and without due process. Think of guidance as an off-the-books way for the government to ignore commonly held understandings of fairness. It’s a shameless, unconstitutional scheme designed to skirt judicial review, avoid public scrutiny, and evade accountability. …

Since guidance lacks notice, comment, and process requirements, it’s easier, faster, and cheaper than substantive rulemaking. Agencies almost always give in to the temptation; they disguise substantive rules as interpretive and call them “guidance.”

Trojan horse rulemaking to create substantive guidance isn’t just unlawful, it’s unconstitutional, as it intrudes on the exclusive province of the legislature. “All legislative powers…shall be vested in a Congress” after all. That quote is not just the first article of the Constitution, it’s the first section of the first article. Even a federal agency can’t miss it.

Guidance is a Trojan Horse for the left’s bureaucracy

The roll back:

The Executive Orders require agencies to post all guidance online within 120 days of implementation. Guidance must be searchable and specifically articulate the statute or regulation that authorizes its implementation.

This level of transparency will hold agencies accountable by ensuring that a regulated party can’t be held responsible for conforming with guidance that isn’t accessible online. Additionally, the executive orders allow the public to petition agencies to revoke substantive guidance, putting the burden on agencies to demonstrate the interpretive nature of their posting. …

Posted guidance … will finally be reviewable by courts. This shouldn’t be a revolutionary change, but it is. …

Substantive guidance is already unlawful, so another president pronouncing its unlawfulness wouldn’t cure a sick system where the administrative state has metastasized into an unconstitutional fourth branch of government. Instead, the administration has set forth simple conditions for guidance implementation that mirror the transparency, accountability, and fairness features of APA rulemaking. …

Substantive guidance’s days are numbered. Agencies will no longer be able to blindside individuals and businesses with their schemes of secret rules, obtuse interpretations, and mafia-like shakedowns.