Executive agencies issue guidance documents, which clarify the obligations that regulated entities and the public alike have under existing law or regulation. This promotes transparency and gives agencies flexibility to address evolving issues. However, the Trump administration took action to undermine the ability of agencies, including the Department of Justice, to issue such documents. In 2020, these efforts included the DOJ in the publication of a series of rules creating burdensome and unnecessary requirements for issuing guidance documents.
In summer 2021, DOJ issued an interim final rule revoking these Trump-era policies and Democracy Forward submitted a written comment in support of this rule. As explained in our comment, agencies, regulated entities, and the public benefit from the issuance of guidance documents, particularly regarding the flexibility the process affords. Indeed, this has become acutely apparent during the COVID-19 pandemic, which has evolved on a near-daily basis. And as disability rights organizations previously informed the DOJ, guidance related to the application of disability rights laws “have been critical to help stakeholders understand rights and obligations during a time of immediate need.” But the Trump-era rules limited the DOJ’s ability to nimbly address important, evolving issues. They also undermined transparency and increased the costs of issuing guidance in the first place, which harms all stakeholders that benefit from guidance documents.
Democracy Forward’s comment also counters the basis for the Trump administration’s changes: specifically, the New Civil Liberties Alliance’s petition for rulemaking, which rests on inaccurate premises and was fatally flawed. The comment explains how NCLA’s rhetoric is inconsistent with reality and that it failed to account for the benefits of robust guidance.
Read the entire comment here.