President Trump on October 9, signed two executive orders that could have an impact on retirement, health and welfare, and comparable guidance issued by agencies that are part of the executive branch of our federal government. Among these agencies are the Treasury Department and IRS, the Department of Labor’s Employee Benefit Security Administration (EBSA), the Department of Health and Human Services (HHS), and the Department of Education.
The ultimate effects of these executive orders have yet to be determined, but they seem clearly intended to limit the issuance, the effect, and the enforcement of certain types of guidance below the level of formal regulations. These executive orders are consistent with the Trump administration’s stated intent to limit regulatory burden, and, in particular, to limit certain kinds of nonregulation guidance that have the effect or force of law.
Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents
This executive order is intended to establish a policy limiting the issuance of agency guidance other than formal regulations that have been subject to public notice, comment, and approval procedures. Furthermore, existing guidance of this kind—called “sub-regulatory” guidance—is to undergo review by the Office of Management and Budget (OMB) if the affected agencies wish to have that guidance remain in effect.
Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication
This executive order would appear to limit compliance enforcement to violations of statutes or approved regulations. Furthermore, if an agency wishes to cite its own understanding of what is necessary to comply with a statute or regulation, then any guidance expressing that agency’s understanding must first have been made publicly available, either by publishing in the Federal Register, or made available in a searchable database of that agency.
It is difficult to predict the extent to which these executive orders may affect reliance on past guidance, the issuance of new guidance, and the enforcement of past or future guidance.