National Review Online: Op-ed by Sens. Alexander and Lankford: Are the Feds Using a Back-Door Lawmaking Power to Hurt Businesses?

Posted on May 7, 2015

It’s very hard to pass a federal law in the United States, and for good reason. Our revolution was against a king; our Founders established a government of elected representatives who would reflect the voters’ will and who were expected to show restraint in making laws. In fact, the Constitution made sure that they were well restrained.

Congress may delegate to federal agencies some responsibility to implement the laws it passes, but that responsibility, called “legislative rulemaking,” has specific constraints — namely that the people must be allowed to have their say before the agencies can make such rules.

Today, some agencies appear to be sidestepping that process by using something called “guidance” to skirt the regulatory requirements of legislative rulemaking, skipping the critical step of soliciting public feedback, and, as a result, ruling businesses and individuals by fiat.

An agency’s guidance — which should simply communicate the agency’s thinking on interpretation of laws and rules — does not have to follow notice and comment requirements because it is not, by law, binding. But the public may feel bound by the agency’s interpretations and the agency’s own staff may treat them as binding.

For example, last year, Catherine Lhamon, the assistant secretary for civil rights at the U.S. Department of Education, was testifying before the Senate Health, Education, Labor and Pensions Committee and was asked whether she expects our more than 6,000 institutions of higher education to comply with her agency’s guidance. She responded, “We do.”

We’re asking federal agencies whether they’re following best practices when issuing guidance and whether the public is complaining the agencies are improperly treating guidance as binding.

In another example, in 2013, at the request of a labor union, the Department of Labor issued guidance that expanded the Davis-Bacon Act — which requires the payment of “prevailing wages” for certain federal projects – to include survey crews, subjecting federal contractors to new costs and requirements without any notice or opportunity for public comment. The ongoing backlash from Congress and the contractor community prompted a congressional hearing.

In a case the Supreme Court ruled on last monthbusiness groups told the court that they are “deeply concerned about the likely legal and economic instability” that would result if agencies increasingly use guidance to make substantive changes to law.

Nine state and local government associations agreed, stating they “would find themselves buffeted by the changing winds at federal agencies with little opportunity to participate in the formulation of binding rules that have a substantial effect on state and local government policy and regulation.”

This Thursday, we are sending letters to government agencies to ask them about their use of guidance — such as whether they are following government-wide best practices when issuing guidance and whether the public is complaining the agencies are improperly treating guidance as binding.

We hope to use responses to these letters to determine whether agencies are using guidance properly — or abusing this less-regulated form of rulemaking.

If agencies treat their guidance or interpretations as binding, those interpretations should be subject to public scrutiny before taking effect. If they abuse the freedom of interpreted rulemaking, this is bad for the public and wholly at odds with congressional intent.

If agencies follow the law but have too much flexibility to effectively issue binding, substantive changes through guidance, then a legislative solution may be required.

We hope the agencies will work with us, and we look forward to their prompt responses.

— Lamar Alexander is the chairman of the Senate Committee on Health, Education, Labor, and Pensions. James Lankford is chairman of the Committee on Homeland Security and Governmental Affairs’ Subcommittee on Regulatory Affairs and Federal Management.