New Civil Liberties Alliance Seeks Rulemaking to Keep Department of Justice from Enforcing Mere "Guidance" Instead of Law

WASHINGTON, July 18, 2018 /PRNewswire/ -- Today the New Civil Liberties Alliance (NCLA) petitioned the Department of Justice (DOJ) to initiate rulemaking to prohibit any part of DOJ from issuing, relying on, or defending improper guidance from government agencies. The proposed rule would formalize existing DOJ policy and carry it an important step further by making it permanently binding so it cannot be summarily rescinded by subsequent administrations.

This petition addresses the commonplace and dangerous practice of government agencies issuing informal interpretations, advice letters, statements of policy, and other forms of "guidance" that effectively make law simply by declaring an agency's views about what the public should do.

"Regulating via guidance is a means of evading the Constitution and the Administrative Procedure Act," said Philip Hamburger, NCLA President. "Agencies often use guidance to extort compliance with standards not required by law or even by regulation."

"When agencies try to regulate by guidance," said Mark Chenoweth, NCLA Executive Director, "they are frequently threatening enforcement or other regulatory action to achieve something that they could not directly require through rulemaking. The agencies expect regulated entities to see the writing on the wall and take the strong hint that if they know what's good for them they will comply—and overlook the lack of statutory authority for what the agency is asking."

These violations of civil rights are compounded by the fact that when agencies act through guidance, they usually can evade judicial review. NCLA's petition would specifically provide for judicial review of guidance.

The petition may be accessed at: https://bit.ly/2O10tQD.

About NCLA
The New Civil Liberties Alliance is a nonprofit civil liberties organization dedicated to protecting constitutional rights from the administrative state. Recognizing that the administrative state is a profound threat to civil liberties, NCLA brings pro bono litigation against administrative power and more broadly seeks to spur a new civil liberties movement to fight against the erosion of Americans' basic constitutional rights. Founded by prominent legal scholar, Philip Hamburger, NCLA is headquartered in Washington, DC.

About Philip Hamburger, NCLA Board Chairman and President
Philip Hamburger, a scholar of constitutional law and its history, is The Maurice and Hilda Friedman Professor of Law at Columbia Law School.  His publications include:  Separation of Church and State (Harvard 2002); Law and Judicial Duty (Harvard 2008); Is Administrative Law Unlawful? (Chicago 2014); Liberal Suppression (Chicago 2018) as well as numerous scholarly and general audience articles. He was the John P. Wilson Professor at the University of Chicago Law School, and has also taught at George Washington University Law School, Northwestern Law School, the University of Virginia Law School, and the University of Connecticut Law School.

Media Contacts:              
Mark Chenoweth
[email protected]

Richard Wolff
[email protected]
646-283-3423      

SOURCE New Civil Liberties Alliance

Related Links

https://www.nclalegal.org/