By Alicia Powe
Under the Obama administration, the White House, the Department of Justice and other federal agencies repeatedly circumvented Congress by using guidance memos to create de facto regulations, changing laws without going through the review process.
“Guidance typically from the department means there is some question about how to do this, because of the way it was ambiguously written, so a federal agency would provide guidance. But the Obama administration, actually, greatly overstepped those limits in clarifying things to in essence create new law,” Matthews explained.
“The Trump administration is doing better than Ronald Reagan on reducing the flow of regulation,” he said, citing the free-market Competitive Enterprise Institute.
Obama ended his presidency with a record-shattering regulatory rulebook. The Federal Register topped off at 97,110 pages, an all-time high, with 18 regulations added for every new law .
While regulations and Federal Register pages, where agency rules and regulations are published, dropped more than one-third under President Reagan over several years, CEI notes, the Trump administration cut the number of pages in the Federal Register 32 percent in the first nine months of this year.
The Trump administration has saved $560 million by cutting regulations, according to American Action Forum.
When Trump ran for president, he promised to slash as many as 80 percent of all federal regulations, and he is on his way to fulfilling that promise.
In a memo released Friday, Attorney General Jeff Sessions explained that the Department of Justice will no longer used guidance documents to amend current law, cement new regulatory requirements or create new rights or obligations beyond what is prescribed by law, as Obama’s Justice Department did.
“Simply sending a letter” to “make new rules” is unconstitutional, he noted.
“It has come to my attention that the department has in the past published guidance documents – or similar instruments of future effect by other names, such as letters to regulated entities – that effectively bind private parties without undergoing the rule-making process,” the memo states.
“Effective immediately, department components may not issue guidance documents that purport to create rights or obligations binding on persons or entities outside the executive branch (including state, local and tribal governments.) To avoid circumventing the rule-making process, department components should adhere to the following principles when issuing guidance documents.”
Sessions also said Friday that the department is ending “regulation-by-litigation.”
“The days of ‘sue and settle’ – when special interests could sue an agency, then get the agency to impose a new regulation in a settlement, often to advance an agenda – are over,” he said. “The Department of Justice is duty-bound to defend laws as they are written, regardless of whether or not the government likes the results. Our agencies must follow the law – not make it.”
A Regulatory Reform Task Force, led by Associate Attorney General Rachel Brand, will also review existing DOJ documents to see if they need to be rescinded or modified.
The guidance documents and regulations Obama issued during the final months of his presidency had far-reaching implications for the coal industry, broadband customers, hunters, women seeking abortion at Planned Parenthood and other abortion providers, and the firearms industry.
The school bathroom mandate was one of the most controversial guidance memos Obama issued. With the help of then-attorney general Loretta Lynch, he instructed public schools that receive federal funding to allow transgender students to use the bathroom of their choice
Matthews pointed out the Civil Rights law of 1964 “states you cannot discriminate based upon race, creed, origin, religion and gender.”
“[What] the Obama administration did was expand that to gay people and transgender,” he said. “That was not covered under the civil rights legislation.”
He said Sessions is “scaling back guidance and restoring it to depend on what is actually legislated.”
“If Congress wants to extend these rights to transgender people, Congress has that option, but now the Justice Department isn’t going to go out and make that expansion themselves,” he said.
In February, Trump issued an order reversing Obama’s transgender policy.
Not only is the Justice Department reducing the scope of the executive branch, Matthews noted, but Trump began his presidency by rescinding onerous regulations issued by the Obama administration through executive order.
In January, Trump signed an executive order requiring that for every new federal regulation implemented, two must be rescinded.
Trump declared moments before signing the order that it “will be the biggest such act that our country has ever seen.”
“There will be regulation, there will be control, but it will be a normalized control where you can open your business and expand your business very easily. And that’s what our country has been all about,” he said.
“If you have a regulation you want, No. 1, we’re not gonna approve it because it’s already been approved probably in 17 different forms,” he said. “But if we do, the only way you have a chance is we have to knock out two regulations for every new regulation. So if there’s a new regulation, they have to knock out two.”
The Obama administration also used guidance memos to force businesses to provide abortion-causing drugs to their employees, David Christensen, the Family Research Council Vice President for Government Affairs, explained.
“The HHS contraception mandate is also subject to Obamacare through guidance on preventive care service to women. The actual contraception component, not actually written in the Affordable Care Act, but is Health Resources and Services Administration guidance document,” Christenson told WND.
“They didn’t have to put emergency contraceptives and sterilization drugs and devices in their guidance, but they did. Subject to that they were issuing regulations exempting religious employers. That’s an example of where a guidance document by an agency prompted whole armed-swath of lawsuits.”
Obama’s DOJ also completely disregarded Congress by reinterpreting the Wire Act, Christenson pointed out.
“The Wire Act prevented online sports gambling, but the DOJ in 2011 reinterpreted the Wire Act by executive fiat, legalizing a multi-billion-dollar industry in the United States that Congress had said was illegal,” he said.
“You look at the ramifications of what the Obama administration did across the board, both through regulations as well as these letters and agency guidance documents and it’s astonishing.”
Christenson said the Family Research Council is very pleased to see Sessions roll back that practice.
“When the executive branch goes beyond the statute, that’s a real problem with adhering with the rule of law,” he said.
“Presidents and executive agencies may not like certain laws but they are still supposed to enforce it. There are times where laws, you can change the regulation that implement the law and your change of regulation might be a legitimate interpretation of the statue. But you are not supposed to be creating law, and bypass Congress, just to meet your political lens, let alone doing it by memo.”
Earlier this year, Republicans in Congress used the Congressional Review Act, a legislative tool it used only once before, to overturn nearly half a dozen Obama-era federal regulations.
It reversed the rule Obama issued last December barring states from withholding federal family-planning funds from Planned Parenthood affiliates and other health clinics that provide abortions.
The American Action Forum calculated repealing the rules could save the economy millions of hours of paperwork, $3.7 billion in regulatory costs to the federal agencies and perhaps $35 billion in compliance costs for industry.