Since July of 2018, the New Civil Liberties Alliance (NCLA) has filed 18 anti-guidance petitions to federal agencies who too often regulate through “guidance” rather than following the process that the Administrative Procedure Act (APA) mandates for regulations—specifically notice and comment. However, these agencies and departments have thus far turned a blind eye to NCLA’s requests to stop promulgating and enforcing guidance that purports to bind private parties with the force of law.
The New Civil Liberties Alliance filed new anti-guidance petitions for rulemaking this week to the following entities: Commodity Futures Trading Commission (CFTC), U.S. Department of Veterans Affairs (VA) and the U.S. Environmental Protection Agency (EPA).
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. The U.S. Supreme Court agrees. In last month’s Kisor v. Wilkie decision, Justice Kagan explained that “[a]n interpretive rule itself never forms ‘the basis for an enforcement action’—because such a rule does not impose any ‘legally binding requirements’ on private parties.” NCLA’s proposed rule would formally commit agencies adopting it to abide by the upshot of Justice Kagan’s words.
“NCLA will continue to call out those federal agencies and departments that issue guidance documents that are not legally binding, but then enforce the guidance as though it is mandatory.”—Mark Chenoweth, NCLA Executive Director and General Counsel
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 will work with any federal agency or department interested in adopting a version of the rule we have proposed.
ABOUT NCLA
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 unlawful 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.