Trump Signs Orders to Restrict 'Unaccountable Bureaucrats' From Creating 'Backdoor Regulations'

President Trump on Wednesday signed two executive orders to restrict federal agencies from issuing certain new rules without going through the normal regulatory process, saying the changes would rein in “unaccountable bureaucrats” who are imposing their "private agenda” on Americans.  

The orders take aim at agency “guidance documents” Trump said have been abused to implement new policies while skirting public comment and review. While the move is the latest in the administration’s effort to slash regulations it says stymie economic growth, critics warned the orders would do away with a key agency tool to quickly protect the public from health and safety risks. 

Agencies issue guidance documents to clarify regulations and provide more in-depth interpretations of how rules should be implemented. Conservative critics of that process have long argued it instead creates an avenue for “stealth regulations” that impose additional burdens to the constituencies they impact. One of Trump’s orders will require agencies to publish guidance documents online, with anything unpublished automatically rescinded. Agencies will have to solicit public feedback on guidance and face White House oversight. The second order will require agencies to inform individuals of any regulatory case against them, acknowledge any responses from those individuals and educate businesses about any new regulatory impacts.

At a White House signing ceremony, Trump called the guidance documents a “pernicious” kind of “backdoor regulation.”  

“Unelected, unaccountable bureaucrats must not be able to operate outside the democratic system of government,” Trump said, pausing to interject, “wow,” before continuing, “imposing their private agenda on our citizens.” He added: “A permanent federal bureaucracy cannot become a fourth branch of government unanswerable to American voters.”  

In a Fox News op-ed, Office of Management and Budget acting Director Russ Vought cited as an example Obama-era guidance that reclassified many independent contractors as employees under the Fair Labor Standards Act.

“This so-called guidance created confusion, raised costs, and drastically multiplied legal liability for businesses,” Vought said. “But the agency did not give businesses or the independent contractors with whom they work the opportunity to provide comment. The agency forced them to comply or face serious reprisal.”

Public Citizen, a consumer advocacy group, said Trump’s own priorities would be upended by the move, citing his push to ban flavored tobacco vaping as a recent example. The group pointed to limiting children’s exposure to lead, fighting the opioid crisis, protecting civil rights and food safety as other cases in which regulatory guidance “has been crucial to protecting the public.” 

“Congress must make clear that Trump’s attack on guidance is unacceptable and will hurt workers, consumers and families,” the group said in a statement. “The next administration should repeal this executive order on day one and refocus on safeguarding the public.”

Susan Dudley, former Office of Information and Regulatory Affairs administrator in the President George W. Bush White House, said the guidance documents can cut both ways. 

“Guidance documents can provide valuable information on agencies’ interpretations of law,” Dudley said. “But, there’s long been concern that agencies sometimes use them inappropriately to make binding policy without going through transparent rulemaking steps.”

She added the administration should be careful not to inhibit “valuable information sharing between agencies and the public,” but should ensure transparency and proper notice of agency policy. 

Trump has frequently touted his administration’s deregulation efforts as a key accomplishment of his presidency. Almost immediately upon taking office, Trump signed executive orders creating task forces at agencies across government to identify regulations for repeal and a requirement that agencies must eliminate two regulations for every new one they issue. That mandate included guidance documents, which OMB spelled out in guidance accompanying the order.

Last year, OIRA said agencies had eliminated $23 billion in overall regulatory costs across the government, with 176 deregulatory actions and 14 significant actions. The ratio of repeals to new rules issued was 12-1, OIRA reported, with only 14 new major rules promulgated. Agencies withdrew or delayed 648 rules in fiscal 2018, or 2,253 since Trump’s inauguration. Opponents to Trump’s deregulatory agenda, however, have faulted the administration for failing to account for the costs of not taking more enforcement actions. 

Courtney Bublé contributed to this report.