— Published with Permission of ConservativeHQ.com —
Last Friday, in an action to further uphold the rule of law in the executive branch, Attorney General Jeff Sessions issued a memo prohibiting the Department of Justice from issuing guidance documents that have the effect of adopting new regulatory requirements or amending the law. The memo prevents the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations.
In the past, the Department of Justice and other agencies have blurred the distinction between regulations and guidance documents. Under the Attorney General’s memo, the Department may no longer issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch.
This is a huge change from the lawless Obama administration when Attorneys General Eric Holder and Lorretta Lynch issued “guidance” almost at will to circumvent Congress and the checks and balances built into our Constitution.
The Attorney General’s Regulatory Reform Task Force, led by Associate Attorney General Brand, will conduct a review of existing Department documents and will recommend candidates for repeal or modification in the light of this memo’s principles.
“Guidance documents can be used to explain existing law,” Associate Attorney General Brand said. “But they should not be used to change the law or to impose new standards to determine compliance with the law. The notice-and-comment process that is ordinarily required for rulemaking can be cumbersome and slow, 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. This Department of Justice will not use guidance documents to circumvent the rulemaking process, and we will proactively work to rescind existing guidance documents that go too far.”
You can read the memorandum from the Attorney General through this link.
While the memo is useful as the document directing the Department’s action, the real meat of Attorney General Jeff Sessions’ approach to this problem is in a speech he recently delivered to the Federalist Society’s 2017 National Lawyers Convention.
We reproduce the Attorney General’s remarks in their entirety below:
Remarks as prepared for delivery:
Thank you, General Meese, for those kind words, and thank you for your service to this country. I believe that you are one of the greatest Attorneys General ever to serve. I keep your picture on the wall of our conference room as a reminder of the example that you set for me and for all of your predecessors.
You led the nation’s fight against crime and began the progress that reduced crime by 50 percent. To this day there is nothing I am more proud of than my 14 years as a federal prosecutor.
It is an honor to be back here with you all. I see a lot of familiar faces.
I have admired and appreciated the Federalist Society from the beginning. I remember when the Society was founded back in 1982. Your first two faculty advisers were a pair of DOJ veterans named Robert Bork and Antonin Scalia. I was U.S. Attorney for the Southern District of Alabama at the time, and I immediately got involved.
Sometimes we felt like a voice in the wilderness. I remember in those early days, originalism and textualism were about as fashionable as disco. But we had a deep belief in our constitutional order and the classical American understanding of the role of a judge.
And largely thanks to you, we are no longer a voice in the wilderness anymore. Today there are some 70,000 Federalist Society members across America. They are in the academy, in the courts, in law offices, in Congress, and—once again—in the White House.
There is no doubt that the Federalist Society has made an enormous and positive difference in our legal system. I cannot name one entity over the last 35 years that has come close to the influence the Federalist Society has achieved. Your work has been the core of our relentless efforts to restore the rule of law in this great nation.
What a difference a year makes. Elections really do have consequences. President Trump is appointing extremely well-qualified, highly respected judges who will be neutral umpires. He is not appointing politicians or activists looking to advance an agenda, but faithful jurists seeking to apply the law.
I know that’s one reason why the American people elected President Trump. Like Ronald Reagan, he ran on a platform of law and order, restoring the rule of law, and appointing originalists to the bench.
The American people well know that activist judges effectively invalidate their votes. Unprincipled ideologues want unelected judges to do for them what they cannot win at the ballot box. This is not a partisan question—it’s a question of fairness and fidelity to the judicial oath and adhere to the constitutional role assigned to the branch.
Judicial activism puts the prejudices and politics of the judge above the law—and makes him into a Constitutional Convention unto himself. An activist judge sits in judgment not of the case—but of the law itself, deciding which laws to apply and which laws to disregard. Whatever it is that activists dispense – it is not law.
Judicial activism is especially disturbing in our country, because we have inherited and advanced the most magnificent legal system in the history of the world.
This is one of the main reasons that America is exceptional. History teaches us that such a system is precious, rare, and fragile. Civilization is difficult to build but easy to destroy.
In his Lyceum Address, Abraham Lincoln said: if we accept small violations of the rule of law, then these violations will only become more frequent, and more serious. And if that happens, it will instill in people contempt for law and eventually for the Republic itself.
At the Department of Justice, we are committed to preserving the people’s respect for the law by carrying out the law fairly and impartially.
I’d like to tell you about some of the work we have done toward that end, including on the topic of this conference—the administrative agencies and the regulatory state.
Last month, the Department finally settled 22 civil cases with 90 plaintiffs regarding the previous administration’s contraception mandate. Their claims were just. The Government constricted their religious liberty.
We have also agreed to settlement terms with nearly 500 plaintiffs in cases brought by groups who were targeted by the IRS when they applied for tax-exempt status based on inappropriate criteria. Criteria like names that used “Tea Party,” “Patriots,” or “9/12” or policy positions concerning government spending or taxes, education of the public to “make America a better place to live,” or statements criticizing how the country was being run. It is also clear these criteria disproportionately impacted conservative groups. Wrongful government policies made these settlements necessary.
The Department also has provided legal counsel to agencies in this administration in favor of ending subsidies to insurance companies that Congress had not appropriated under the Affordable Care Act. I am proud to say President Trump put an end to this unlawful practice. The Executive Branch has no power to spend money not appropriated by Congress.
Similarly, no Cabinet Secretary has the power to wipe entire sections of immigration law off the books. But that’s what the previous administration did with its Deferred Action for Childhood Arrivals, or DACA, policy. Under DACA—without the consent of Congress—individuals here illegally who met certain criteria were granted lawful presence in the United States, work authorization, and the right to participate in Social Security. No matter what one thinks about immigration policy, it cannot be reasonably disputed that DACA exceeded law.
Once again, the Department advised and the administration to put an end to it—and it is being ended.
The Department is also restoring the rule of law through litigation. Our Solicitor General has filed an amicus brief in support of a Colorado baker who was sued for refusing to bake a cake for a same-sex wedding. Although public-accommodations laws serve important purposes, they—like other laws—cannot be interpreted to undermine the individual freedoms guaranteed by the First Amendment. That includes the freedom not to provide creative expression for ceremonies that violate one’s religious beliefs.
Meanwhile, I have changed policies at the Department that support our mission of doing justice by executing the law.
For example, we are no longer allowing so-called “sanctuary” jurisdictions to nullify federal immigration law if they want to receive our law enforcement grants. We have placed conditions on these grants to encourage the elected leaders of these states and cities to help us remove criminal aliens from this country.
In June, I ended the practice of third party settlements. Under the last Administration, the Justice Department often required settling parties to pay settlement funds to third party organizations that were not directly involved in the litigation or harmed by the defendant’s conduct.
We believe that when the federal government settles a case against a corporate wrongdoer, any settlement funds should go first to the victims and then to the U. S. Treasury—not to bankroll third-party special interest groups or the political friends of whoever is in power. Nowhere does the Constitution grant unelected attorneys or political appointees the power to effectively appropriate and distribute funds based on their political alliances.
Neither does it give them the power to issue regulations outside of the process demanded by Congress.
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.
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 reasonably explain existing law—not to change it.
From now on at the Department of Justice, that’s what they will do. I am announcing today that this practice is over.
We have prohibited all Department of Justice components from issuing any guidance that purports to impose new obligations on any party outside the Executive Branch. We will review and repeal existing guidance documents that violate this common sense principle.
We will also now honor a directive that has been on the books at the Department of Justice since Ed Meese was Attorney General: I am ending regulation-by-litigation. The days of “sue and settle” —when special interests could sue an agency, then get the agency to impose a new regulation in a settlement, often to advance an agenda—are over.
The Department of Justice is duty-bound to defend laws as they are written, regardless of whether or not the government likes the results. Our agencies must follow the law—not make it.
The judges in our courts must apply it. But as we know too well, some judges fail to respect Congress and the Executive Branch. One particularly striking example was the federal judge in Brooklyn who heard argument on a challenge to the federal government’s wind down of DACA.
Rather than address the question, the court said the government “can’t come into court to espouse a position that is so heartless.” Not unlawful, but “heartless.”
With respect: it is the province and duty of courts to say what the law is. They are to apply and follow the law, not advance an ideology or express political beliefs. We cannot allow unelected judges to set policy through an abuse of the adjudicative process.
Comments on policy like these from a judge are offensive. They unfairly criticize an attorney who is doing his job effectively. Judges have the solemn responsibility to examine the law impartially. The Judiciary is a co-equal branch; it is not a superior or a policy-setting branch. Those who ignore this duty and seek to advance their own policy views erode the rule of law, set bad precedents and, importantly, undermine the public respect necessary for the courts to function properly.
An increasing number of district courts are taking the dramatic step of issuing nationwide injunctions—orders that block the entire United States government from enforcing a statute or an executive branch policy nationwide. Scholars have not found a single example of any judge issuing this type of extreme remedy before the 1960s.
But today, in effect, single judges are making themselves super-legislators for the entire United States. We have nearly 600 federal district judges in the United States—each with the ability to issue one of these overreaching nationwide orders.
The Supreme Court has consistently and repeatedly made clear that courts should limit relief to the parties before them. So if lower courts continue to ignore that precedent, then the Supreme Court should send that message again.
Enjoining the entire federal government is an extreme step. To take that step because of a political disagreement is unacceptable. The Constitution gives judges no right to veto a President’s actions because they disagree with him on policy grounds.
The media only focuses on decisions that go against us. But we also have important wins. The Supreme Court has vacated both of the appellate court rulings against the President’s travel pause. We also successfully obtained before the Second Circuit a rare mandamus order staying a premature and abusive discovery order in a case to stop the wind-down of the DACA program.
Although some district courts may initially rule against us, I am confident that our positions will be vindicated in the court of appeals and, if necessary, in the Supreme Court.
President Trump has the statutory authority to suspend immigration of any individuals he deems are contrary to the national interest. His rational, narrow proclamation is justified and we are vigorously defending it.
Before I conclude, let me say this. There are those outside this room—and maybe more than a few in this room—who are frustrated right now. I get frustrated too. But the rule of law isn’t about always getting the outcome you want.
It’s using the same, fair process, and pursuing the truth wherever it leads.
We can never allow any part of our legal system—and least of all the Department of Justice—to be reduced to a tool for a political agenda. This Department will not make decisions based on politics, ideology, or bias as long as I am Attorney General. I believe this is what the American people expect and deserve from their Department of Justice. And we will not confirm investigations or leak sensitive law enforcement information to get a few cheap headlines. I am determined to establish the proper discipline in these matters.
In the long run, a failure to do so can only result in a further decline in respect for justice in America.
Whenever anybody asks us to investigate a crime, we take that seriously. We consult with the appropriate law enforcement agency; we evaluate the evidence, and we use our best judgment to make an appropriate decision.
And recusals happen all the time throughout the Department of Justice—because we follow the rules. That furthers confidence in justice.
I believe that when the history is written about this Department of Justice, it will reflect that President Trump appointed one of the finest teams ever assembled in our great Department, and that we remained faithful to our oaths.
I am proud to work with them every day. And I am proud to stand with you as you defend the rule of law.
Thank all of you, Federalist Society leaders and members, for your commitment to that goal. I will work every day to be worthy of your trust.