The Trump administration has adopted new limits on the use of “guidance documents” that federal agencies have issued on almost every conceivable subject, an action that could have sweeping implications for the government’s ability to sue companies accused of violations.
Guidance documents offer the government’s interpretation of laws, and often when individuals or companies face accusations of legal violations, what they have really violated are the guidance documents. Defense lawyers say the change in policy gives them a powerful tool to fend off allegations of wrongdoing against their clients.
It also advances a goal declared by President Trump in his first days in office: to reduce the burden and cost of federal rules and requirements. But consumer advocates say the move will crimp enforcement of crucial protections.
In a footnote, the Trump administration makes clear that the new policy has broad ramifications: It applies to any civil lawsuits filed on behalf of the federal government to “impose penalties for violations of federal health, safety, civil rights or environmental laws.”
It also applies to cases in which the government asserts that health care providers or federal contractors defrauded the government by filing false or inflated claims.
Lawyers and lobbyists have been rushing to tell clients about the policy, which was issued on Jan. 25. Morgan Lewis, a global law firm, said in a bulletin for clients that it “provides needed relief” for regulated industries, “giving them greater opportunity to push back against enforcement theories” that rely on official guidance documents.
Benjamin C. Mizer, a former Justice Department official who now works at the law firm Jones Day, said the new policy “may significantly affect cases involving the health care and life sciences industries” because the Food and Drug Administration and the Centers for Medicare and Medicaid Services have relied heavily on guidance documents.
No wonder America’s elites, with the minor exceptions of virtually every elected member of the majority party in Congress, big business interests, many major donors, and most rich white people, were fully united against Donald Trump.