Last week, Attorney General Sessions sent a memorandum prohibiting the use of guidance in place of notice and comment rulemaking “when purporting to create rights or obligations binding on members of the public or the agency.” Who can doubt that Scott Pruitt is jealously thinking that he should have been the first on this one?
The debate between guidance and regulation has long been a concern of mine, and I am generally supportive of the views expressed by the AG in the memorandum. When a guidance document “reads like a ukase,” to quote from one of my favorite cases concerning the guidance/regulation debate, and when an agency implements guidance documents as though they are regulations, then something has gone seriously wrong.
However, the Sessions memo is a curious document, and its oddity goes to the heart of the dilemma in opposing guidance documents that function as regulations. The memorandum has five bullet points intended to ensure that regulations no longer masquerade as guidance documents. The problem? Every single administration, Republican and Democratic, since the modern administrative state began in the New Deal, could say that it already complied with all of the Sessions memo requirements.
The problem with guidance documents isn’t how they’re drafted; it’s how they’re implemented. No matter how much the AG wishes it weren’t so, street-level bureaucrats are always going to retain a lot of discretion in implementing the policies and programs for which they are responsible. If they decide that it’s easier just to require compliance with a guidance document than to interpret it flexibly as was no doubt intended by those who wrote it, then it’s going to function as a regulation in the real world.
What can be done to avoid this outcome? It would require senior managers making clear that they are not going to support their underlings when they take the easy way out and just tell the regulated community to comply with the guidance. Perhaps the AG – and EPA – need to create a position called something like the “Guidance Ombudsman” (or woman), where members of the regulated community could take concerns about the implementation of guidance without fear of retribution.
Make it so.