by Eve Hill
In the wake of the 2016 election, we have been seeing federal agencies, such as the Department of Education, announce that they will no longer issue guidance to help covered entities understand and apply the statutes and regulations that apply to them. So it came as no surprise when the Department of Justice announced on Friday that it will no longer issue guidance on the federal laws it enforces and that it will review existing guidance to identify those that should be rescinded.
The memorandum is couched in terms of eliminating guidance that circumvents the rulemaking process by imposing new binding obligations on covered entities without notice-and-comment rulemaking. But the instructions of the memorandum go much further – they forbid the Department from using “shall,” “must,” “required,” or “requirement” and require the Department to state that all guidance is non-binding. This effectively muzzles the experts on federal law from explaining how the law applies in specific contexts. It threatens to leave covered entities in the dark when, in good faith, they apply the law to new situations they face on the ground.
Congress has recognized the importance of such guidance in the past. No statute or regulation can predict every situation in which it will apply. Rather, they provide principles that covered entities, agencies, and courts will apply in particular situations. Agencies, as the organizations that gain experience in applying the law across contexts and across the country, are the best sources of guidance about how to apply the law consistently and fairly. For those reasons, Congress, in the Americans with Disabilities Act (ADA), for example, specifically required the Justice Department to develop and implement a plan to provide technical assistance to individuals and entities that have rights and duties under the ADA. 42 U.S.C. § 12206. Congress specifically required the Department to issue “technical assistance manuals” under the ADA to help covered entities and individuals understand their rights and obligations.
Worse, it provides covered entities who are not acting in good faith to use the excuse of ignorance to escape liability for ignoring the law. Covered entities are already arguing in court that they can’t be held responsible for complying with the ADA because the statute and regulations do not state exactly what they have to do in the specific situation before the court. For example, despite the ADA saying that covered entities must ensure that all their communications are as effective for people with disabilities as they are for people without disabilities, Winn-Dixie supermarkets are arguing that their websites should not have to be accessible because the ADA does not specifically list websites as methods of communication and does not say specifically how a website must be coded in order to be considered accessible. Notably, the statute and regulations do not list any methods of communication – and most people understand that written documents, spoken information, videos, and websites are methods of communication. But covered entities claim they have not gotten sufficient notice that their websites are covered unless the Department of Justice says so. They go further to say that, until the Department of Justice says so, no court can consider whether to apply the ADA to websites. Yet, under the Department’s new approach, it will never be allowed to tell covered entities that websites are methods of communication and are obviously covered under existing law.
The Department’s guidance ban leaves regulations as the only method the Department can use to explain the law to covered entities. Yet, the Trump Administration has already mandated that no new regulations will be issued unless two regulations are withdrawn and that agencies create regulatory reform task forces to identify and rescind regulations. And the Department of Justice has, for example, already announced that it will not pursue regulations addressing how websites should meet the ADA requirements.
This refusal to assist people in understanding the law affects a wide variety of legal areas. The Department’s website currently includes guidance on antitrust law, the Foreign Corrupt Practices Act, emergency preparedness, and the Immigration and Nationality Act, just to name a few. Perhaps the most significant area that will be affected by withdrawal of guidance is in civil rights. Currently, DOJ’s website includes guidance on the ADA, Fair Housing Act, Title VI, environmental justice, use of race in law enforcement, Title IX, and others. As the Department of Education implemented its review of guidance to rescind, it focused, first on nearly 100 guidances about the rights of students with disabilities. I fear we can expect a similar approach at the DOJ.
But the Department apparently will still issue guidance on issues it cares about. Rather than issuing guidance to covered entities and protected individuals, however, it will apparently make its views heard by telling other agencies what the law means and how they should enforce it. For example, just a month ago, the DOJ issued guidance to other administration agencies on the protections of religious freedom. It is filled with instructions as to what agencies “may not” do and what they “should” do in enforcing federal law and protecting religious freedoms. In what would now be a violation of the Department’s rules on guidance, it fails to inform agencies that the guidance is not binding.
In short, the Department’s new approach does not mean the DOJ will no longer make policy for its enforcement of the law. It just means the Department will no longer tell covered entities and protected individuals what those policies are. This announcement does not protect covered entities from an activist DOJ. It merely makes the DOJ less transparent.