Some big news this morning that may not seem that big to a lot of people. Everything from the IRS randomly changing rules on people to the ATF issuing “guidance” out of their ass could be effected by this. Only time will tell to what extent the swamp will be able to “interpret”/nullify it, of course, but it is definitely a step in the right direction.
“The order instructs federal agencies to “treat guidance documents as non-binding both in law and in practice,” include public input in formulating guidance, and make the documents “readily available to the public”:
Agencies may impose legally binding requirements on the public only through regulations and on parties on a case-by-case basis through adjudications, and only after appropriate process, except as authorized by law or as incorporated into a contract.
They have 120 days following the “implementing memorandum” from the Office of Management and Budget to review their own guidance documents and rescind those that they determine “should no longer be in effect.” If it wants guidance to remain in effect, an agency must publish the document in a “single, searchable, indexed database” on its website.
The second order bars federal agencies from pursuing “a civil administrative enforcement action or adjudication absent prior public notice of both the enforcing agency’s jurisdiction over particular conduct and the legal standards applicable to that conduct.”
It notes that the Freedom of Information Act amended the Administrative Procedure Act to better protect Americans from “the inherently arbitrary nature of unpublished ad hoc determinations”:
The Freedom of Information Act also generally prohibits an agency from adversely affecting a person with a rule or policy that is not so published, except to the extent that the person has actual and timely notice of the terms of the rule or policy.
Unfortunately, departments and agencies (agencies) in the executive branch have not always complied with these requirements. In addition, some agency practices with respect to enforcement actions and adjudications undermine the APA’s goals of promoting accountability and ensuring fairness.
The order binds agencies to “apply only standards of conduct that have been publicly stated in a manner that would not cause unfair surprise” to a target of enforcement, adjudication or other forms of “determination” that have “legal consequence.”
It even requires them to publish any document that they intend to enforce “arising out of litigation (other than a published opinion of an adjudicator), such as a brief, a consent decree, or a settlement agreement.” This means agencies can’t spring new rules out of thin air on parties that weren’t subject to the litigation.”
One wonders if this means trump just made his own bumpstock ban illegal..
