Attorney General Directs DOJ to Stop Circumventing APA

Susan Dudley

In remarks to the Federalist Society’s National Lawyers Convention on Friday, Attorney General Jeff Sessions announced new Department of Justice policy on issuing guidance “or similar instruments of future effect by other names, such as letters to regulated entities.” In a memo to all DOJ components issued Friday, the AG directed them to discontinue the practice of publishing “guidance documents…that effectively bind private parties without undergoing the rulemaking process.”

Sub-regulatory guidance documents have received increased attention recently, with the Government Accountability Office’s confirmation that many such documents fit the definition of “rule” under the Congressional Review Act and are subject to its reporting requirements and congressional resolutions of disapproval.

The AG’s memo directs the Department not to circumvent the Administrative Procedure Act with actions that purport to create rights or obligations on the public, observing:

Not only is notice-and-comment rulemaking generally required by law, but it has the benefit of availing agencies of more complete information about a proposed rule’s effects than the agency could ascertain on its own, and therefore results in better decision making by regulators.

Read the full memorandum here:

Susan Dudley

Director, GW Regulatory Studies Center & Distinguished Professor of Practice

Trachtenberg School of Public Policy & Public Administration, George Washington University

Regulatory Process

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the author(s). To join the debate, please email us at [email protected].

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