Dear Colleague: Guidance Documents & Executive Agencies [POLICYbrief]

In 2014, the Department of Education and the
Department of Justice jointly issued a Dear Colleague letter on school discipline policies. A Dear Colleague letter is a form of guidance
document. They put out a guidance document that proposed
to enforce disparate impact theories under Title VI of the Civil Rights Act. Uh, within months after they put that guidance
document out, they were in school districts. In, in my hometown of Milwaukee, that school district entered a consent decree
with the Department of Education where they agreed to completely change their school discipline
policy. That has significant, real-world consequences,
and that was all the direct result of the guidance document that many would have argued
it was unlawful and has since been repealed. Guidance documents come from agencies to help
implement, uh, and inform the public of how the agency is going to regulate. Uh, it’s a way of giving a 10,000-foot overview
of what the agency’s gonna do, that leads to efficiencies and to transparency and just
helps the regulated community work with the agency. There’s some potential there for abuse in
that agencies may overstep their authority and impose new rules as a guidance document,
but by and large, guidance documents are intended to help the regulated community, as well as
the agency, with efficient outcomes. Agencies use guidance documents for a variety
of reasons. It’s mainly to convey information to the public,
to summarize, uh, legal requirements and regulations and law in a plain language way, to provide
frequently asked questions or fact sheets that may be useful for the regulated community,
as well as to agency staff. Guidance documents don’t have the force of
law. Sometimes, however, as the rulemaking process
can be cumbersome and lengthy, some agencies may see it as an easy path to go around the
rulemaking process and put out a regulation that could purport to have the effect of law. There can be a lot of ambiguity between guidance
documents and regulations. When you see an agency speaking, your regulator,
somebody that you rely on, uh, to help you lawfully conduct your business, your natural
inclination is to essentially do what they say, right? The regulated community wants to follow the
law, they wanna do the right thing. So when agencies put out guidance documents,
it’s not always clear that it’s simply a guidance document and that it’s not something that
is required to be followed. Once guidance documents start becoming less
about education of the public and more about regulation of the public, it can lead to some
significant problems for the regulated community who don’t know necessarily what the law is,
if an agency is departing from traditional understandings of what a regulation means
in a way that deviates from Congress’ original intent on a law, for example. It can lead to some significant problems for
the regulated community who are trying to implement the law and comply with it. The abuse of guidance documents leaves the
potential for some significant delegation problems at the constitutional level. So, when agencies implement new regulations
on the public, they are engaging in legislating, essentially, under delegated powers to them
by Congress. Congress has given those powers to them, but
has retained an oversight role as they engage in rulemaking. There is no oversight role really for Congress
when guidance documents are put forward. So the potential is out there for agencies
to engage in unlawful legislating, essentially, and unconstitutional legislating, and that
would ultimately lead to a, a challenge under delegation grounds. When an agency’s going to put out a guidance
document, if it wants to minimize controversy and maximize transparency, it should simply
restate the law. A lot of attention should be given to plain
language analysis and to making it a guidance document that is well-founded in statute or
regulation. Statutes and regulations should be cited too
in a guidance document. Guidance documents should be implemented with
the assistance of the regulated community and the general public. They should only be implemented when absolutely
necessary to resolve conflicts or where people have a lot of questions. Think of the IRS when they put up some fact
sheets when you’re doing your taxes and help explain what may be available for you in a
given situation or what your situation might entail for taxes, and they could put some
examples out there, and you could find an example that’s right on par with your life. That would certainly make your life a lot
easier. It would make doing your taxes a lot easier.

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