PRESIDENT TRUMP ISSUES NEW EXECUTIVE ORDERS TO CURB BACK-DOOR REGULATION

President Trump has signed two new executive orders on October 9, 2019 to reduce government regulations without formal rule-making.  At the signing ceremony, he stated: "For many decades, federal agencies have been issuing thousands of pages of so-called guidance documents - a pernicious kind of regulation imposed by unaccountable bureaucrats in the form of commentary on how rules should be interpreted.  All too often, guidance documents are a back door for regulators to effectively change the laws and vastly expand their scope and reach."

One order, called "Promoting the Rule of Law Through Improved Agency Guidance Documents" requires agencies to post all of their guidance documents on a searchable website with the understanding that anything not posted is considered rescinded.  The other order, called "Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication" is an effort to prevent secret or unlawful interpretation of regulations and from unfair or unexpected penalties. 

The two orders would not prevent agencies from prosecuting various enforcement actions, but they state that violations of the law should be based on statutes and legally binding regulations.  It is unlikely that opinion letters will be affected because they are specifically authorized by the Administrative Procedure Act.