Late last month, a hearing of the U.S. Senate Committee on Homeland Security & Governmental Affairs’ Subcommittee on Regulatory Affairs and Federal Management provided yet another opportunity to consider the consequences of executive overreach in higher education. Senator James Lankford chaired the June 30 hearing, titled “Examining the Use of Agency Regulatory Guidance, Part II,” which was a follow-up to the September 23, 2015 hearing.
At the hearing, the vast majority of discussion centered on executive overreach more generally, but the applications to the higher educational context are plain. In a particularly insightful moment at the hearing, Senator Heidi Heitkamp, the ranking member of the subcommittee, articulated precisely why members of Congress from both sides of the aisle must protect against executive overreach:
You know, obviously nothing is going to happen here unless we do have steps we can all take together. At some point, the paths may diverge, but I think there are some steps that we can all take together. And I think that when you look at it through the lens of “we’re in charge now, so we’re happy, but tomorrow we might not be in charge and we might not be as happy.” So these rules should set a framework or foundation in which to evaluate rules no matter which side of the political spectrum is promulgating those rules.
Senator Heitkamp makes an important point: The rules are supposed to ensure procedural fairness no matter who is in charge.
In a democratic republic like ours, power will change hands back and forth over time. If executive agencies are allowed to cut corners and impose substantive rules without oversight from the other branches of government, that abuse of power will be replicated in the future by the party that isn’t in charge today.
In an exchange with Public Citizen’s Amit Narang near the 48 minute mark of the hearing, Senator Heitkamp again hit the nail on the head when she observed that guidance documents can be used to coerce regulated bodies (like universities) and perhaps should require more notice and comment. The exchange went as follows (emphasis added):
Amit Narang: The other concern I have is that guidance documents are distinct from rules. The distinction is based on guidance documents not being binding. Now if you were supposed—if Congress were to essentially create a process that resembled notice-and-comment rulemaking for guidance documents, but kept those guidance documents nonbinding—it seems to me that agencies then really have no incentive to go issue a guidance document, since they have to go through basically the same process as notice-and-comment rules, but with guidance documents they’re nonbinding and rules they are binding.
Senator Heitkamp: But, we’ve seen significant changes. Let’s say, these are the rules, and all of the sudden in a guidance document, those rules don’t apply anymore. So it seems to say to me that something changed. And that if you are simply interpreting a rule or a statute that gives clarity, but when you simply turn the boat and say now we’re gonna go in this direction like OSHA did with some of the anhydrous rules, then we get a little suspicious and we say, “Wait a minute, for the last decades, this was perfectly acceptable and legal behavior. We had been communicating with OSHA. We’d been complying with the rules. Now they are telling me we can’t do this and in fact we can be out of business.” Don’t you think in that case, a guidance, albeit not binding, but certainly terrifying in the case of the regulated entity, that there should be more notice and comment? There should be more availability in terms of oversight, rather than doing it through a guidance. And so I think, I don’t want to think that this is the big issue in terms of regulatory reform, but I do believe that guidance is used as a shortcut and that shortcut denies the ability of the agency to get enough input to maybe choose a path that could in fact be a better path and provide more safety, provide better outcomes for both the regulated and the regulator, and the consumers. So, I think we are at this kind of impasse here where I’m trying to find which steps we can take that could achieve some kind of consensus to actually open the dialogue.
While Senator Heitkamp offered the Occupational Safety and Health Administration (OSHA) as an example, she could have easily been talking about the Department of Education’s Office for Civil Rights’ (OCR’s) guidance documents on campus sexual assault and sexual harassment. Senator Heitkamp’s concerns mirror many of FIRE’s own, and helped prompt our decision to support litigation against the Department of Education over its issuance and enforcement of the the April 4, 2011 “Dear Colleague” letter (DCL). In our lawsuit, we explain that the OCR’s DCL—which OCR claims is just a “significant guidance document”—changed the rules and is being treated as if it is binding to the detriment of institutions of higher education and students alike. The lawsuit argues that OCR’s actions violate the Administrative Procedure Act (APA).
The APA, in part, is designed to ensure executive agencies’ authority is cabined to implementing measures consistent with congressional statutes. The APA requires those agencies to invite and consider input from stakeholders so that regulations are created in partnership with affected parties. This process helps ensure that hidden pitfalls are avoided and final regulations are implemented with all concerns having been considered. FIRE hopes that abuse of the guidance process will come to a halt, and that agencies will return to seeking input from stakeholders before changing the rules. We are pleased to see that Senator Heitkamp also sees the big picture and shares some of our concerns.
We're joined by First Amendment attorney Marc Randazza and British journalist Brendan O'Neill to discuss the state of free speech in the United States and Europe. Randazza is a First Amendment attorney and the managing partner at Randazza...