Senator Lankford Applauds Attorney General Sessions’ Decision to End DoJ Regulation By Guidance

WASHINGTON, DC – Senator James Lankford (R-OK) today applauded Attorney General Jeff Sessions’ decision to prohibit the Department of Justice from issuing regulatory guidance documents that have the effect of adopting a new law or regulatory requirements. As chairman of the Senate Subcommittee on Regulatory Affairs and Federal Management, Lankford has long decried this federal agency practice. 

“Regulatory guidance documents were originally meant to clarify existing law, not create new law. But unfortunately, it has been abused by agencies to force law-like directives on colleges, local municipalities, farmers, companies, and other regulated entities,” said Lankford. “I’m pleased that Attorney General Sessions is putting an end to this abuse at the Department of Justice. When agencies pursue regulatory changes through quick guidance instead of thorough regulations, the American people are left out of the process. This is a pervasive problem across all of government, as agencies sometimes legislate using guidance. Agency guidance should never be a substitute for regulation or law. I encourage the entire Trump administration to follow in Sessions’ footsteps on this.”

The Administrative Procedure Act (APA) allows agencies to issue guidance documents to interpret issues in an existing regulation or law. While the vast majority of guidance is used appropriately to provide regulated entities with timely information and quick updates, guidance also leaves open the possibility that agencies improperly issue guidance documents instead of regulations, in order to take advantage of the APA’s exceptions and relaxed procedures.

In 2015 and 2016, Lankford challenged the President Obama administration on this practice and held several hearings on this matter. Lankford repeatedly challenged the Office of Management and Budget and Departments of Education and Labor on their inappropriate use of regulatory guidance. Academics and legal experts have agreed with Lankford’s concern with the Obama administration.