The New Civil Liberties Alliance today filed half a dozen Petitions for Rulemaking taking issue with the abusive, shortcut manner in which federal departments and agencies issue regulatory guidance. The Petitions ask each named department or agency to stop promulgating and enforcing guidance that purports to bind private parties with the force of law. The entities receiving today’s petitions include: the Department of the Treasury, the Department of Labor, the Department of the Interior, the Department of Agriculture, the Federal Trade Commission, and the Consumer Financial Protection Bureau.
These latest anti-guidance petitions join a slew of others that NCLA has filed during the past six months. Together they mark the one-year anniversary of the “Brand Memo” issued by former U.S. Associate Attorney General Rachel Brand. The memo forms a key part of the Justice Department’s internal reform of its guidance practices. Specifically, the Brand Memo informed the rest of the Executive Branch that the Justice Department would no longer enforce other agencies’ guidance documents when bringing affirmative civil enforcement actions.
NCLA believes that the attempted use of agency guidance documents to create rights or obligations that are binding on regulated third parties is wrong and unconstitutional. To rein in such abuses, NCLA has asked the Department of Justice to convert the Brand Memo into a formal rule barring the creation and enforcement of improper guidance.
In addition, NCLA proposes that all other federal agencies and departments should adopt similar formal rules barring them from issuing and enforcing improper guidance. To that end, NCLA has filed fifteen petitions so far and has plans to file more.
In the year since the Brand Memo was released, most federal agencies have failed to take the hint. The Justice Department has sounded the death knell of unlawful guidance, and other federal departments and agencies must fall in line. This is something federal agencies can do without help from Congress, and they owe it to the American people to stop issuing improper guidance and start abiding by the rule of law and the Constitution.
Mark Chenoweth, NCLA Executive Director and General Counsel
“Administrative agencies must commit to a future free from their past regulatory mischief. While the Brand Memo represented a positive step, it is just a non-binding policy statement. It is guidance about guidance, and it remains useful only so long as the agencies stay vigilant.”
Caleb Kruckenberg, NCLA Litigation Counsel
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the administrative state. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unbridled power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org