Attorney General Jeff Sessions delivered a major address in Washington, DC, Friday, just as his Department of Justice issued a new memo signaling a willingness to scale back the department’s role in enabling the freewheeling administrative state.
“The Department of Justice is duty-bound to defend laws as they are written, regardless of whether or not the government likes the results. Our agencies must follow law; we are not entitled to make it,” Sessions told the Federalist Society’s annual convention at Washington’s Mayflower Hotel.
The Federalist Society, the largest organization of conservative and libertarian lawyers in the United States, made the “administrative state” a main theme of its annual convention this year. The term refers to the thousands of unelected employees of federal agencies who, since the triumph of President Franklin Roosevelt’s “New Deal” in the 1930s and 40s, actually issue far more of the rules by which Americans live than Congress. Breitbart News Executive Chairman Stephen K. Bannon placed the “deconstruction of the administrative state” at the very center of the populist-nationalism ideology he guided as Trump campaign CEO and then as White House chief strategist.
Sessions took the opportunity to slam his own predecessors’ extensive use of the the administrative state to carry out their policy goals, giving a shout out to his number three, Associate Attorney General Rachel Brand, whom he described as “anti-regulatory state.”
He cited politicized administrative decisions during the Obama era that he has taken the lead on clearing up, including Health and Human Services mandating Obamacare funding, Lois Lerner’s IRS targeting conservative groups, and his own predecessors at DOJ creating a “slush fund” for left-wing groups with settlement money from corporate defendants. All these actions were taken by agencies without the express command of Congress.
“No Cabinet secretary has the power, through guidance letters or otherwise, to wipe out entire sections of the immigration law. But that’s what the previous administration did with this Deferred Action for Childhood Arrivals or DACA policy,” Sessions declared. “Under DACA, without the consent of Congress, individuals here illegally, who met certain criteria, were granted not only lawful presence, but work authorization and the right to participate in social security, which unlawful immigrants are not entitled to have.”
Sessions was not all business. Before launching into his speech, he took the opportunity to make light of Democrats repeatedly grilling him over brief encourters with Russians at campaign events. “Is Ambassador Kislyk in the room?” he joked, “Any Russians? Anyone been to Russia?”
The Attorney General also had a few guarded words for those on the right frustrated by a perceived timidity and lack of targeting at Session’s DOJ:
There are those in this room … who get frustrated when they turn on the TV at night, and you have to take Rolaids, and everybody’s got an opinion about what the attorney general should do … Well, I get frustrated too. A lot things I’d like to be able to say and explain. But the rule of law is not about getting the outcome you seek. It’s using the same fair process, pursuing the truth wherever it leads. We can never allow any part of our legal system – least of all the Department of Justice – to be reduced to a tool for political agenda. This Department will not make decisions based on politics, ideology, [or] bias as long as I am attorney general.
In the case of the administrative state, however, Sessions’s office was prepared to announce significant action Friday. In the memo, drafted Thursday, DOJ is directed to curtail the use of “guidance documents” to set policy. This device was used to effect some of the furthest stretches of the administrative state’s power in the Obama era, including giving de facto amnesty to hundreds of thousands of illegal aliens with DACA.
DOJ guidance documents will now be severely limited in their coercive effect, forbidden to use mandatory language, and required to clearly state they are not final determinations of anything. Wherever possible, DOJ is directed to use the much more formal and public process of notice and comment rule making or to defer to Congress.
This new stance aiming to rein in the administrative state’s power comes after the newest Supreme Court Justice, Neil Gorsuch, gave perhaps the strongest indication yet that the judicial branch may be open to reexamining the power of the administrative agencies – for the first time since its advent in the 1930s – in the Trump era.