This is the Cater Daily Podcast for Thursday, April 5th, 2018.

I'm Caleb Brown.

Federal agencies sometimes act to prohibit behavior even when a statute is less than

clear, and when regulations themselves are less than

clear, agencies produce guidance documents to tell the public how to interpret the regulation.

The process needs to change, and in some ways it is.

Cato senior fellow Walter Olson comments on the power of this restrictive guidance.

Congress passes a law. They provide an edict essentially to a regulatory agency,

you shall do X. And the agency says, well that's not really a lot to go on.

I guess we'll have to write a bunch of regulations doing our best to try to do X.

And then when the regulations themselves aren't necessarily that clear the agency is able to produce guidance

documents which help the private sector understand the regulation that has been put in place from the statute that may not have been all that clear to begin with.

And I have a lot of sympathy for agencies that are trying to do their best to issue guidance, issue regulations that are, follow what Congress may or may not

have intended.

Guidance documents can do a couple of things and one of them is define how the agency

operates and perhaps give the agency more authority and more functions allow it to collect more information than you would think to look at the statute.

But also guidance documents interpret laws which specifically prescribe what's illegal for the private

sector to do. So you can have a law banning private

companies from doing A, B, and C. And then guidance documents issued perhaps 30, 40 years later by the agency saying on looking at this we've

decided that these additional things are also covered by the ban. In the

meantime there has been no new legislation. There has been

no formal regulatory process which every agency can do by which they can propose to extend

...