The powers of the federal agencies to regulate the lives of U.S. citizens has taken a massive blow.
On Wednesday afternoon, Oct. 9, President Donald Trump issued two executive orders to “[reform] the bureaucracy to make it lean, responsive, and accountable. And we are ensuring our laws are enforced fairly.”
“The rule of law requires transparency. Regulated parties must know in advance the rules by which the federal government will judge their actions,” reads one of the executive orders.
“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 [Administrative Procedures Act’s] goals of promoting accountability and ensuring fairness.”
The two executive orders outline a number of policy changes that will impact how agencies such as the Environmental Protection Agency, U.S. Fish and Wildlife Service, Food and Drug Administration, and others work. The goals outlined in the orders focus on making agency actions narrower, more transparent, and more grounded in existing laws and protocol. For example:
• Guidance documents cannot be de facto law: “Guidance documents may not be used to impose new standards of conduct on persons outside the executive branch except as expressly authorized by law or as expressly incorporated into a contract,” reads the introduction to Section 3 of one of the executive orders. “The agency may not treat noncompliance with a standard of conduct announced solely in a guidance document as itself a violation of applicable statutes or regulations.”
• No “unfair surprises”: Several elements of the executive orders address “unfair surprises” for citizens in agency activity. “Unfair surprise” is defined as “a lack of reasonable certainty or fair warning of what a legal standard administered by an agency requires.” In this vein, agencies are directed to avoid unfair surprises in both adjudication and applying penalties.
• Review of guidance documents: Guidance documents will be required to undergo the same sort of issue-and-comment-period procedures as other agency regulations. This includes the potential to withdraw guidance documents if they are deemed inaccurate.
“Time and time again over the past three years, this administration has proven its commitment to regulatory relief and reform for agricultural producers,” said National Cattlemen’s Beef Association Vice President of Government Affairs, Ethan Lane, in the group’s celebratory response.
“Washington needs to help our producers succeed and continue to help feed the world—not actively try to put them out of business. The Trump administration understands that, and we look forward to continuing our work with them toward that goal.”
There were many other details contained in the executive orders. The implications of the orders are potentially wide-reaching and fundamental to how federal agencies will operate. Look for more in-depth coverage of these topics in future issues of WLJ. — WLJ
