Attorney General Cancels Two Dozen Justice Guidance Documents

In keeping with the Trump administration’s targeting of agency guidance not required by statute, Attorney General Jeff Sessions on Tuesday announced that he was rescinding 24 documents written to provide legal guidance by past administrations.

Citing his own November 2017 memo barring agency lawyers from writing rules in ways that deviate from congressional intent, Sessions released a list of guidance documents that he considered were “unnecessary, outdated, inconsistent with existing law, or otherwise improper.”

In previous administrations, he said in a release, “agencies often tried to impose new rules on the American people without any public notice or comment period, simply by sending a letter or posting a guidance document on a website. That’s wrong, and it’s not good government.”

Under President Trump, “we are restoring the rule of law,” Sessions added. “When issuing regulations, federal agencies must abide by constitutional principles and follow the rules set forth by Congress and the President.”

The affected documents touch on rules from the Obama and George W. Bush administrations on subjects ranging from jail removals to the rights of asylum seekers to work.

Guidance documents are often produced ad hoc by regulators in consultation with stakeholders after agencies determine that the existing statutes and promulgated rules are insufficient in their detail to steer affected parties in their actions and expectations.

“Guidance documents can be used to explain existing law,” Associate Attorney General Brand said back in November.  “But they should not be used to change the law or to impose new standards to determine compliance with the law. The notice-and-comment process that is ordinarily required for rulemaking can be cumbersome and slow, but it has the benefit of availing agencies of more complete information about a proposed rule’s effects than the agency could ascertain on its own. “

The Justice Department Regulatory Task Force identified 25 guidance documents for repeal in December 2017, and will continue its reviews at Justice, Sessions said. The items rescinded in 2018 are:

1. March 17, 2011, OJJDP Memorandum re Status Offenders and the JJDPA.
2. October 20, 2010 OJJDP Memorandum re Status Offenders and the JDDPA.
3. June 17, 2014, Revised Guidance on Jail Removal and Separation Core Requirements.
4. Disaggregating MIP Data from DSO and/or Jail Removal Violations: OJJDP Guidance for States, 2011.
5. OJJDP Policy Guidance for Nonsecure Custody of Juveniles in Adult Jails and Lockups; Notice of Final Policy.
6. OJJDP Guidance Manual: Audit of Compliance Monitoring Systems.
7. OJJDP Disproportionate Minority Contact Technical Assistance Manual, Fourth Edition, 2009.
8. BJA State Criminal Alien Assistance Program Guidelines, 2016.
9. NIJ April 6, 2016, Dear Colleague Letter regarding additional topics and research questions of high priority and particular interest to the NIJ as part of its Comprehensive School Safety Initiative.
10. Looking for the Best Mortgage, December 14, 2010.
11. FRB: Putting Your Home on the Loan Line is Risky Business, August 6, 2015.
12. Federal Protections Against National Origin Discrimination, April 30, 2006.
13. Look at the Facts, Not at the Faces:  Your Guide to Fair Employment, Approx. July 2009.
14. Refugees and Asylees Have the Right to Work, May 2011.
15. Language Assistance Self-Assessment and Planning Tool for Recipients of Federal Financial Assistance, on or before February 12, 2003.
16. FAQs About the Protection of Limited English Proficiency (LEP) Individuals under Title VI of the Civil Rights Act of 1964 and Title VI Regulations, March 1, 2011.
17. Draft Language Access Planning and Technical Assistance Tool for Courts, December 18, 2012.
18. December 2, 2011 Dear Colleague Letter Regarding the Use of Race by Educational Institutions.
19. 2011 Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education dated December 2, 2011.
20. 2011 Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools dated December 2, 2011.
21. September 27, 2013 Dear Colleague Letter on the Voluntary Use of Race to Achieve Diversity in Higher Education After Fisher v. University of Texas at Austin [Fisher I].
22. September 27, 2013 Questions and Answers About Fisher v. University of Texas at Austin [Fisher I].
23. May 6, 2014 Dear Colleague Letter on the Supreme Court Ruling in Schuette v. Coalition to Defend Affirmative Action.
24. September 30, 2016 Question and Answers About Fisher v. University of Texas at Austin [Fisher II].  

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