The edicts of the administrative state must be easier to read and harder to transgress.
The edicts of the administrative state must be easier to read and harder to transgress.
T he late Justice Antonin Scalia popularized the likely apocryphal story of Nero’s edicts, in which the bloodthirsty Roman emperor is alleged to have posted his laws on high pillars so that they would be “harder to read and easier to transgress.”
Yet today, in our republic, which prides itself on the rule of law, it may shock many to learn that this practice continues. Americans are subjected to thousands of new rules every year, many of which carry hefty criminal penalties. Additionally, through the practice of administrative “guidance,” ordinary people are expected to follow government edicts that are not even published in the Federal Register.
Guidance has emerged as a powerful tool for administrators to impose new requirements without informing the public through notice and comment.
It works like this: An administrator determines that certain conduct is impermissible under the agency’s interpretation of an old statute or rule. Then the agency uses new guidance documents as the basis of an enforcement action.
Meanwhile, a regulated party may never have seen the guidance documents the government claims it failed to comply with. That’s because agencies are under no congressional obligation to make guidance public. Some do publish them; many do not.
Fortunately, Congress is closer than ever to shining a light on this abusive practice. The Bipartisan Guidance Out of Darkness Act (GOOD Act) would require agencies to, at minimum, publish their guidance online. This would not fix the problem, but it would at least let the public know what liabilities they may face.
The bill is currently sponsored by Representatives James Comer (R., Ky.) and Ro Khanna (D., Calif.) in the House and by Senator Ron Johnson (R., Wis.), among others, in the Senate. The House passed it by voice vote last year, and the Senate passed it unanimously out of committee in early August. Senate leadership should now bring this commonsense legislation to the floor and pass it.
Agencies should not use guidance to make new rules. The imperfect Administrative Procedure Act sets out the legal requirements an agency must follow when it wishes to engage in policymaking. This includes allowing opportunities to challenge the implementation of a new rule. While guidance often subverts these requirements, at the very least, if agencies want to continue this practice, the public has the right to know exactly what they are doing.
The GOOD Act would be an excellent first step in notifying the public about the pervasive problem of government through guidance. The only reason to oppose this basic measure is a desire for agencies to continue this practice in secret.
Americans routinely demand transparency from our elected leaders; it is equally, if not more, important that we have transparency from those whom we don’t elect. Because we cannot vote out much of the administrative state, we must subject it to public scrutiny to achieve accountability.
To get what we expect from government, we must, at the very least, know what government expects from us before it flexes its dubiously legal regulatory muscles. Congress must pass the GOOD Act and other reforms that will last beyond this presidency. This is the only way to provide certainty for regulated parties. Congress must be empowered to reclaim its authority to make laws, and allowing the public to see who has taken that authority first is essential.
The edicts of the administrative state must be easier to read and harder to transgress.