Generally, when an administrative agency wants to affect a person’s liberty or property, it must go through a fairly complicated and cumbersome process that seeks public input. (Whether or not that input makes any difference is a different story.) However, in recent decades, administrations of both parties have sought to bypass this process through the use of so-called “sub-regulatory actions.” By issuing memoranda, guidance documents, FAQs, and even blog posts, agencies have avoided the need to formalize their rules. Yet they still expect Americans to comply with these transitory documents or face ruinous fines or even litigation. In particular, during the Obama administration, the Department of Education used “Dear Colleague” letters to deprive students of due process on college campuses. McGahn called these missives “Orwellian.” And he’s right. In September, Betsy DeVos, the secretary of education, rightfully rescinded these guidance documents, announcing that “the era of rule by letter is over.”
More recently, in another speech at the Federalist Society meeting, Attorney General Jeff Sessions announced that his agency will cease issuing guidance documents that effect a change in the law. Under the leadership of Associate Attorney General Rachel Brand, who also spoke at the convention, the Justice Department will review existing guidance documents and propose modifying or even rescinding some. “This Department of Justice,” Brand said, “will not use guidance documents to circumvent the rulemaking process, and we will proactively work to rescind existing guidance documents that go too far.”
This is a remarkable and refreshing position, as it retroactively and prospectively constrains the ability of the Justice Department to expand its own authority.