Trump Hits Back Against Deep State
President Trump was elected on the back of his promise to “drain the swamp,” and last week he took another step towards getting that done. New executive orders will curb the power of federal bureaucrats to interpret the law in their own favor and increase the rights of citizens to challenge government overreach.
Ever heard of a process called “federal guidance?” Probably not — it’s one of the government’s more obscure tools. It’s also a serious problem because it lets unelected officials carry out what they think the law means, even if what they’re doing isn’t what Congress had in mind.
- Bureaucrats like federal guidance, because it’s a quick way for them to interpret the law in ways that suit them. Getting regulations passed by law takes time and involves a lot of detailed scrutiny; federal guidance doesn’t. It gives agencies and even the administration a way to make major policy decisions without the public getting any chance to have a say.
- What is federal guidance? Basically, it’s a system where agencies “interpret” the law then issue their interpretation in letters, bulletins, even blog posts — there are many informal ways to do it — then act on these “interpretations” as if they’re law. Constitutionally they’re not, but they can be very hard to resist.
- Federal guidance also gets around the problem of judicial review. Usually, you can only sue a government agency after the agency’s actions are seen as final by the court — but courts don’t see guidance as final. So an agency can fine you, take away your business permit or seize your property, and you can’t use the law to stop them.
- Now Trump wants to end that with two executive orders. They’re sure to cause outrage among bureaucrats, but they’re very — even brutally — simple.
- The first order’s goal is “to ensure that Americans are subject to only those binding rules imposed through duly enacted statutes or through regulations lawfully promulgated under them and that Americans have fair notice of their obligations.” This basically says that unless a law has been passed by Congress or formally written as a regulation, it’s not the law.
- The second order backs up the first by limiting agencies’ powers to take action or impose fines, by saying US citizens won’t be “subjected to a civil administrative enforcement action or adjudication absent prior public notice of both the enforcing agency’s jurisdiction over particular conduct and the legal standards applicable to that conduct.”
- From now on, agencies will have to post all guidance online within 120 days. They’ll also have to state the law that authorizes them to implement that guidance. The public will be able to petition agencies to revoke guidance that goes beyond interpretation, and any “economically significant” rules will have to go through the White House’s Office of Management and Budget for approval.
- Two executive orders won’t clear out the whole mess of overreach and empire-building that’s accumulated in government over the last 200 years, but it’s a good start. Thanks to President Trump, the government has a little less power over us than it did last week.
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