U.S. Attorney General Jeff Sessions. Credit: Diego M. Radzinschi / ALM

U.S. Attorney General Jeff Sessions announced Friday the Justice Department will revamp its policy for issuing guidance documents.

Speaking at the Federalist Society's annual conference in Washington Friday, Sessions said the Justice Department will no longer issue guidance that “purports to impose new obligations on any party outside the executive branch.” He said DOJ will review and repeal any documents that could violate this policy.

“Too often, rather than going through the long, slow, regulatory process provided in statute, agencies make new rules through guidance documents—by simply sending a letter,” Sessions said. “This cuts off the public from the regulatory process by skipping the required public hearings and comment periods—and it is simply not what these documents are for. Guidance documents should be used to explain existing law—not to change it.”

In a Nov. 16 memo from Sessions to all DOJ component agencies released Friday, the attorney general wrote that guidance documents should clearly state they are not “final agency actions” and have “no binding effect” on people or groups outside the federal government, and that DOJ has complete discretion to change or modify them.  

“Guidance documents should not use mandatory language such as 'shall,' 'must,' 'required,' or 'requirement' to direct parties outside the federal government to take or refrain from taking action,” the memo said.

According to the memo, the policy does not apply in documents where the department is communicating enforcement priorities or factors considered in exercising prosecutorial discretion.

Sessions did not give any examples of memos he thinks should be rescinded. However, In February last year, the Trump administration rescinded DOJ guidance issued under President Barack Obama that said federally funded schools should allow transgender children to use the bathroom of their choice.

In a letter rescinding the policy, then-acting assistant attorney general Tom Wheeler of the Civil Rights Division wrote the Obama guidance did not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.”

 

The Sessions memo is posted below: