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The Trump administration's successful war against bureaucratic bullies
Rachel Bovard, Opinion contributor Published 5:00 a.m. ET Oct. 16, 2019 
https://web.archive.org/web/20191017223758/https://www.usatoday.com/story/opinion/2019/10/16/bureaucratic-bullies-trump-administration-successful-war-against-column/3974449002/

For years, unelected bureaucrats have been allowed largely unchecked power over the daily lives of Americans. This president is trying to change that.

All of these cases share a common feature: They arose from unelected bureaucrats making completely selective decisions about how a law should be interpreted and enforced, without the oversight or input of Congress or the public.

In bureaucrat-speak, these decisions are often referred to as “guidance documents” or “advisory opinions” and represent an agency’s way of “interpreting” regulations and statutes.

But unlike formal regulations, guidance documents simply arise from an agency’s whim. There is no transparent process with statutory requirements for ample legal justifications, cost benefit analysis and a process for public comment and assessment.

Rather, agency bureaucrats simply decide that a policy will exist, and then will it to life. They are then free to enforce it on unsuspecting Americans, who often have little clue that such a document or policy even exists.

The enormous authority of these unelected administrators

The subjective, secretive nature of the process has led one critic to deem it “regulatory dark matter.”

This “government by memo” is how the Obama administration effectively mandated that colleges lower the burden of proof in sexual assault tribunals on their campuses in 2011.

Two years later, the Consumer Financial Protection Bureau issued a bulletin informing that auto lenders would be liable for racial discrimination based on the makeup of their lending portfolios.

In 2015, the Department of Labor upended the entire labor market with a blog post announcing it was now classifying some independent contractors as full-time employees.

This type of murky, unclear, bureaucrat-driven style of regulating is exactly what Americans fear from the administrative state. It is, essentially, bullying by the government. Indeed, in the Sackett case, the EPA claimed the couple did not even have the right to challenge the agency’s finding in court. (The Supreme Court unanimously reversed the agency in 2012.) 

The Trump administration is taking welcome steps to stop the bureaucratic bullying. With the signing of two executive orders last week, the administration is requiring that these guidance documents be subject to transparent formulation and notice before enforcement. Critically, these orders also make sure ordinary Americans have the ability to challenge the government’s determination against them.

This is a relief to those whose lives have been upended by government policy decisions quite literally made in secret and enforced against them with little to no legal recourse.

Americans generally play by the rules — but they have to know what they are. These two new executive orders are a welcome step by the Trump administration, and a vital part of their continued efforts to rebalance the relationship between regular Americans and the powerful colossus that is the administrative state.

Rachel Bovard is the senior director of policy for the Conservative Partnership Institute and co-author of the book "Conservative: Knowing What to Keep."