Introduction

On October 9, 2019, President Donald Trump signed an Executive Order titled “Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents” [PDF version]. The Order provides new directives for administrative agencies regarding the promulgation and accessibility of guidance documents. Although President Trump’s Executive Order applies to all Executive Branch agencies, it will be especially significant in the immigration context because several immigration agencies make extensive use of guidance documents. We will also examine excerpts from a companion Executive Order issued by President Trump on the same day, “Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication” [PDF version].

In this article, we will examine President Trump’s Executive Order and what it may mean in immigration law going forward.

Policy Introduction

President Trump introduced the issues in Section 1 of the Executive Order.

He explained that the Administrative Procedure Act (APA) generally requires administrative agencies to engage in notice-and-comment rulemaking to provide the public with notice of and an opportunity to comment on proposed regulations before final rules are published in the Federal Register. Notwithstanding the APA, agencies may promulgate guidance documents to clarify existing regulations. President Trump explained that such guidance is non-binding. He stated, however, that Federal agencies “have sometimes used this authority inappropriately in attempts to regulate the public without following the rulemaking procedures of the APA.” He added that, generally, “the public frequently has insufficient notice of guidance documents, which are not always published in the Federal Register or distributed to all regulated parties.”

Definitions of Key Terms

Before examining the substantive provisions of the Executive Order on guidance documents, we must first examine the definitions of the pertinent terms.

President Trump defines a “guidance document” for purposes of the Executive Order as “an agency statement of general applicability, intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issue, or an interpretation of a statute or regulation…” Sec. 2(b). The definition excludes the following types of documents:

rules promulgated pursuant to notice and comment under section 553 of title 5, United States Code, or similar statutory provisions;
rules exempt from rulemaking requirements under section 553(a) of title 5, United States Code;
rules of agency organization, procedure, or practice;
decisions of agency adjudications under section 554 of title 5, United States Code, or similar statutory provisions;
internal guidance directed to the issuing agency or other agencies that is not intended to have substantial future effect on the behavior of regulated parties; or
internal executive branch legal advice or legal opinions addressed to executive branch officials.
Section 2(b)

(It is worth noting that removal proceedings are not covered by 5 U.S.C. 554, despite being a form of agency adjudication. Ardestani v. I.N.S., 502 U.S. 129 (1991) [PDF version].)

President Trump defines a “significant guidance document” as a guidance document that may be reasonably anticipated to:

lead to an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles of Executive Order 12866.
Section (2)(c)

The Executive Order provides for some differences in policy regarding regular guidance documents and significant guidance documents, making the distinction significant.

President Trump also defines the term “pre-enforcement ruling.” Here, it “means a formal written communication by an agency in response to an inquiry from a person concerning compliance with legal requirements that interprets the law or applies the law to a specific set of facts supplied by the person.”

Office of Management and Budget Guidance

President Trump directed the Director of Office of Management and Budget (OMB) to promulgate guidance for the implementation of the Executive Order. Many of the timeframes for the implementation of the Executive Order will start with the issuance of the Director of OMB’s memorandum. The Director of OMG may also promulgate regulations for the implementation of the Executive Order.

Transparency Directives

Section 3 of the Executive Order contains several provisions relating to transparency.

Within 120 days of the Director of OMB’s issuing an implementing memorandum, every Federal agency or component will be required to establish or maintain on its website “a single, searchable, indexed database that contains links to all guidance documents in effect from such agency or component.” Sec. 3(a). This website will be required to advise “that guidance documents lack the force of law, except as authorized by law or as incorporated into a contract.”

Also within 120 days of the OMB Director’s memorandum, agencies will be required to review their existing guidance documents and rescind guidance documents that they determine should no longer be in effect. All guidance documents that are retained must be included in the database described in the previous paragraph. All subsequently issued guidance documents must be included in the database. For the first 240 days after the issuance of the OMB Director’s memorandum, agencies may reinstate guidance documents initially rescinded in this review without complying with other procedures in the order, but not, presumably, thereafter. Sec. 3(b).

An agency may request that the Director of OMB waive the requirements of section 3(a) or 3(b). The Director of OMB may waive the requirements of sections 3(a) and (b) on a case-by-case basis for particular guidance documents or categories of guidance documents. The Director of OMB may also extend deadlines for particular guidance documents on a case-by-case basis. Sec. 3(c).

Within 240 days of the issuance of the memorandum, the Director of OMB may request from the head of the agency a report with the reasons for maintaining any guidance documents identified by the OMB Director. These reports will be submitted to the President. This provision applies only to guidance documents existing as of October 9, 2019. Sec. 3(d).

Guidance Document Rules Going Forward

Within 300 days of the OMB Director’s implementing memorandum, each agency will be required to finalize regulations, or amend existing regulations as necessary, codifying the procedures for issuing guidance documents. These processes must include the following:

  • a requirement that each guidance document clearly state that it does not bind the public, except as authorized by law or as incorporated into a contract;
  • procedures for the public to petition for withdrawal or modification of a particular guidance document, including a designation of the officials to whom petitions should be directed; and
  • for a significant guidance document, as determined by the Administrator of OMB’s Office of Information and Regulatory Affairs (Administrator), unless the agency and the Administrator agree that exigency, safety, health, or other compelling cause warrants an exemption from some or all requirements, provisions requiring:
    • o a period of public notice and comment of at least 30 days before issuance of a final guidance document, and a public response from the agency to major concerns raised in comments, except when the agency for good cause finds (and incorporates such finding and a brief statement of reasons therefor into the guidance document) that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest;
    • o approval on a non-delegable basis by the agency head or by an agency component head appointed by the President, before issuance;
    • o review by the Office of Information and Regulatory Affairs (OIRA) under Executive Order 12866, before issuance; and
    • o compliance with the applicable requirements for regulations or rules, including significant regulatory actions, set forth in Executive Orders 12866, 13563 (Improving Regulation and Regulatory Review), 13609 (Promoting International Regulatory Cooperation), 13771 (Reducing Regulation and Controlling Regulatory Costs), and 13777 (Enforcing the Regulatory Reform Agenda).
    • Sec. 4(a)

The Administrator of the Office of Information and Regulatory Affairs (OIRA) will issue memoranda establishing limited exceptions from the Executive Order for categories of guidance documents, as appropriate. The Administrator will also issue memoranda setting forth categorical presumptions regarding whether a guidance document is significant, as appropriate. The Administrator will have discretion to require that agencies submit significant guidance documents for review by the OIRA before they are finalized. There is a limited exception to OIRA review for certain functions of the Department of the Treasury. Sec. 4(b).

Further Guidance in Civil Enforcement and Adjudication Executive Order

President Trump’s second October 9, 2019 Executive Order, on civil enforcement and adjudication, also includes important directives regarding guidance documents.

In section 3 of the civil enforcement and adjudication Executive Order, President Trump expressly prohibits agencies from using guidance documents “to impose new standards of conduct on persons outside the executive branch except as expressly authorized by law or as expressly incorporated into a contract.” Thus, “[w]hen an agency takes an administrative enforcement action, engages in adjudication, or otherwise makes a determination that has legal consequences for a person, it must establish a violation of law by applying statutes or regulations.” The violation of a guidance document alone cannot be treated by an agency as a violation of a statute or properly promulgated regulation. Guidance documents may be used only in this context to articulate the agency’s understanding of a statute or regulation. Furthermore, agencies may only cite to guidance documents in this context if it has made the guidance document available in advance as required by the Executive Order on guidance documents, discussed in the previous section.

Conclusion

President Trump’s Executive Orders on guidance documents could have potentially far-reaching effects in administrative law. The exact scope of its implementation will become more clear when the Director of OMB publishes the implementing memorandum for the Executive Order. In the context of immigration, the Order will require the immigration components to review their existing guidance documents and potentially make changes to ensure greater public access to the guidance documents that are retained. We will continue to follow this issue as it develops.

We discussed similar guidance document policies within the Department of Justice (DOJ). In 2017, then-Attorney General Jeff Sessions restricted the use of guidance documents by DOJ [see article] and rescinded 25 existing guidance documents for being inconsistent with the law and his new policy [see article]. In early 2018, former Associate Attorney General Rachel Brand published a memorandum restricting the use of guidance documents in civil litigation [see article]. President Trump’s Executive Order can be seen as extending some of the principles from the Sessions and Brand memoranda, which applied only to DOJ, to the entire Federal government.