Last week President Trump signed two Executive Orders that significantly curb our current rule by bureaucracy – now also known as the Administrative State. The National Association of Scholars commends President Trump for these orders, “Promoting the Rule of Law Through Improved Agency Guidance Documents” and “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication.”
The Orders will have implications for colleges and universities and in particular for campus Title IX offices, which have mushroomed alongside expanding governmental agencies.
Title IX refers to the 1972 federal law banning sex discrimination in schools receiving federal funds. Title IX also served as the pretext for vast administrative expansions under the Clinton and Obama administrations. The Clinton administration announced that “nondiscrimination” meant parity in funding for female and male athletics; Obama declared that sexual violence should be treated as sex discrimination. In both instances, these Presidents introduced significant policy changes by administrative fiat, sidestepping the legislature and skirting the formal rule-making process required by the Administrative Procedure Act (the APA)—ultimately avoiding democratic input and accountability.
The Obama Title IX directive was especially egregious: Through a 2011 Dear Colleague Letter, the Obama Education Department effectively ordered campus Title IX Offices to investigate and punish alleged sex offenders without due process protections for the accused. As a result, nearly 500 students denied justice are now filing lawsuits against their colleges and universities, claiming they were wrongly accused and denied their due process rights. President Trump’s Education Secretary Betsy DeVos rescinded the Letter in 2017 and is expected next month to issue new regulations, which did receive public comment and input.
President Trump’s Executive Orders take direct aim at this practice of law by Dear Colleague Letter – or law by any such informal document that skips the steps necessary for democratic legitimacy. The first Order, “Promoting the Rule of Law Through Improved Agency Guidance Documents, requires that any guidance statement from a federal agency be publicly posted and accessible in an online agency database, with the clarification that it is not binding law. The second Order, “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication, allows agency enforcement action only when those affected have had the opportunity to respond to such action and when the public has had prior notice of the agency’s jurisdiction and standards for legal conduct.
Much attention has been paid to judicial activism, where judges read their preferred policies into statutes or the Constitution, resulting in law by judicial fiat. But law by bureaucracy is just as pernicious and perhaps more insidious. The bureaucracy, unlike the judiciary, is often nameless and faceless. The result in both cases is the same, of course: Depriving citizens of a government of, by, and for the people. NAS supports measures to prevent this and thanks President Trump for this executive action.