Washington D.C. is full of drama these days. And while it might not get the talking heads on cable news worked up, President Donald Trump’s administration has quietly and effectively undertaken significant regulatory reforms — making the vast federal bureaucracy slimmer and more accountable.
Just this week, Trump issued two executive orders that mirror some of the successful reforms passed in Wisconsin. The first order, “Promoting the Rule of Law Through Improved Agency Guidance Documents,” requires federal agencies to publish guidance documents on easily searchable websites, and requires public input on certain guidance documents. Guidance documents are sometimes called the “secret playbooks” of agencies. They are agency publications that explain how laws and rules may be applied by the agency. They can take many forms, like an information brochure or a “frequently asked questions” document, for example. Importantly though, guidance documents do not have the force of law — that is, agencies may not rely on a guidance document alone to take a regulatory action — the guidance document merely explains or summarizes duly enacted laws and regulations.
But guidance documents can give important insight into how a given law or rule will be enforced. As a result, guidance documents can impact individuals and businesses as they make decisions on how to best comply with legal requirements. Requiring guidance documents to be posted online and providing an opportunity for public input helps ensure efficient compliance with laws, and uniform application. These reforms also help make certain that agencies are not relying on unlawful authority to make decisions — that is, it helps hold agencies accountable.
Trump’s order mirrors what the Wisconsin legislature passed in 2018 during the December extraordinary session. State agencies are now required to post guidance documents on their websites, and establish a notice-and-comment system for guidance to obtain public input.
The second of Trump’s executive orders, “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication,” prohibits agencies from enforcing rules that were not made publicly known in advance, and instructs agencies to issue opinion letters to individuals and businesses so they can learn how to best comply with the law.
The goal of these executive orders and the mission of regulatory reform is to make federal and state agencies more accountable. Unfortunately, progressives have an ideological commitment to empowering unelected bureaucrats to make rules and regulations that have the force of law. The result has been the creeping and costly growth of government into more and more spheres of life.
While Wisconsin’s reforms are far from perfect, Governor Tony Evers and his big government allies have tried every legal trick to avoid accountability. Evers has been exploiting a loophole in the law that allows dozens of guidance documents to be issued with zero days for public comment — a direct affront to open and transparent government. And Evers fight has gone to court where it is currently at the Wisconsin Supreme Court. We should expect the same backlash at the federal level.
Wisconsin has been a leader on regulatory reform over the past decade. From rulemaking to agency guidance document reform, Wisconsin has made government more accountable and more transparent time and time again. What has worked in Wisconsin can work at the federal level, and we applaud the Presidents efforts to improve the federal bureaucracy.
Lucas Vebber is Deputy Counsel and Director of Regulatory Reform and Federalism at the Wisconsin Institute for Law & Liberty.