Lankford Subcommittee Presses Obama Administration on Their Use of Regulatory Guidance Directives

Press Release

The Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management, under the chairmanship of Senator James Lankford (R-OK), today held a hearing to examine the Obama administration's continued abuse of regulatory guidance directives. Today's hearing continued the examination of this issue from previous hearings on September 23, 2015 and June 30, 2016. The administration provided the following three witnesses: Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) Administrator Howard Shelanski, Department of Labor Solicitor M. Patricia Smith, and Department of Education official Amy McIntosh.

"I understand that regulatory guidance is a useful and needed tool to transmit key information to regulated parties," said Lankford. "However, we must address the fact that, at times, agencies use guidance as a way to get around the law. I was disappointed with what I heard today from the Obama administration witnesses. The Department of Labor acknowledged that when their latest rule goes into effect this year, non-profit institutions will suddenly have a jump in administrative costs based on their new overtime rule; but their answer was to encourage donors to give more, not withdraw the harmful rule. The Department of Education stated that they will honor the court orders that have already blocked their regulatory overreach, but they do not acknowledge that they have overstepped their legal boundaries.

"The witnesses did not provide adequate justification for their continued abuse of regulatory guidance directives. Congress, with the executive branch, must find a way to ensure that guidance across the federal government is issued with transparency and applied consistently, so that federal regulators are held accountable."

Additional questions for the witnesses will be submitted, for the record, for responses within 30 days.

For two years, Lankford has repeatedly challenged the Department of Education's inappropriate use of "Dear Colleague' letters to mandate policy for schools without adhering to rule-making procedures. Lankford has also questioned the Department of Labor's enforcement memoranda imposing costly changes to longstanding Process Safety Management standards. Academics and legal experts have agreed with Lankford's concern with the Obama administration.

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