Labor Secretary Acosta urges Executive Branch restraint

In a recent presentation for the Colorado Bar Association’s 2017 annual conference, I noted the relatively recent proliferation of Executive Branch guidances and other informal publications that have not gone through the formal rulemaking process required for the issuance of regulations. I predicted we will see (from a number of fronts including agencies themselves, the courts and Congress) a movement to swing the pendulum back and begin constraining such non-regulatory near-rulemaking. In other words, we will begin to see a push for agencies to return to the rulemaking process.

In a recent speech, Luis Acosta, Secretary of the U.S. Department of Labor, made a similar point and, indeed, took the point further.

I would like to begin with some basic observations, well understood by everyone here. Since the New Deal, we have sought solutions to govern an increasingly technical and complex economy. Congress has seen fit to rely on the Executive’s rulemaking discretion, and simultaneously, it has tried to limit that discretion.

Secretary Acosta emphasized that these informal guidances not only skip the rulemaking process but, as a result, do not enjoy scrutiny through the checks and balances that the rulemaking process provides, including opportunities to obtain “the public’s input” and Congressional oversight. He contends this is particularly troubling because informal guidance is nonetheless provided some deference by some courts (whether formal or simply practical deference).

Let me be clear: Agencies can, and must, interpret their regulations. And often, the regulated public is helped by knowing how an agency interprets its regulations. That is why I have resumed the policy of issuing opinion letters to companies that ask DOL whether their practices are lawful. These opinion letters do not enact substantive change to the law; they simply inform the requester how DOL will apply the law to a particular set of facts.

But so-called “interpretations” that go beyond providing clarity and become mechanisms to change the law are another matter entirely. The reason these interpretations matter, of course, is that the courts defer to them.

He concluded with direction to the agencies within the DOL and a call to the agencies outside his control to return to formal rulemaking.

The restraint I am advocating is hard, because the desire for results is real. Rulemaking is hard, and it is necessary. Congressional action may be hardest of all, but it is demanded by our Constitution.

In the end, taking the hard road connects us to the promise of our Founders and paves the future path that is right for our Republic.

This is an issue likely to come up in several Supreme Court cases this year. Even if not part of a case’s formal record, the courts, especially the Supreme Court, will be aware that  Secretary of one of the most powerful federal agencies spoke publicly on these issues.

Source: Acosta presentation to Federalist Society

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