Yes, Jeff Sessions really is making a difference at the Justice Department, as a new order curbing the department’s own power makes clear.
The other day, a friend said to me that he figured Sessions really would be better off accepting a write-in bid for his old Senate seat because “he’s not really doing anything as Attorney General anyway. I haven’t seen any big successes there.”
I beg to differ. I’ve covered the Department of Justice (DoJ) quite closely for more than 20 years, and have seen that much of what gets done there – especially the bad stuff – occurs mostly behind the scenes. Under Barack Obama, DoJ became a cesspool of radical-left politics, with all sorts of skullduggery going on not just at the top levels, but at the middle levels of the bureaucracy.
Sessions is steadily cleaning out the stables. What he is doing doesn’t always make the headlines, but it does make a difference. A big one.
Yes, occasionally he may be going in the wrong direction, as I noted in my column a few weeks back on asset forfeiture. But on the vast majority of issues Sessions is not just a breath, but a gale, of fresh air. The latest example – of many examples, which future columns will also highlight – involves the aforementioned order against the DoJ’s own prior misuses of power.
Sessions announced late last week that he is ending the practice of having DoJ achieve what he called “regulation by guidance.” This was a pernicious practice by which DoJ, under the guise of supposedly explaining existing law, would send a “guidance” letter “advising” various entities of what amounted to new policies or legal theories the department would pursue, even if no law or regulation had actually changed.
For one controversial example, former Attorney General Loretta Lynch in May 2016 issued a guidance letter that effectively required public schools to permit transgender students to use the bathrooms that correspond with their newly chosen “gender identity,” not the actual sex organs with which they were born. Her letter carried the implicit threat that schools failing to comply with the “guidance” could lose federal funding.
Eliminating this “guidance” practice is a big deal. It was a way for DoJ to bully large institutions or segments of society into adopting leftist cultural policies without Congress or even official bureaucratic rule-makers having changed a single word of applicable federal law. When DoJ effectively threatens to sue an entity if it doesn’t accept the new “guidance,” that’s enough of a threat to force compliance in most cases – without a single democratic/representative process having been undertaken.
Sessions’ new memo explicitly re-limits guidance memos to standard attempts to explain existing interpretations of law into plain English, while specifically saying that “guidance documents should not be used for the purpose of coercing persons or entities” into actions favored by some ideological cabal at DoJ.
“Guidance documents should not use mandatory language such as ‘shall,’ ‘must,’ ‘required’ or ‘requirement’ to direct parties outside government to take or refrain from taking action,” Sessions wrote – except, of course, for merely restating already existing, clear statutory language.
This new order, effectively withdrawing one of his department’s own (improper) powers, is an example of the kind of careful and, frankly, humble approaches that Sessions is taking. Just like judges, prosecutors and DoJ should be applying laws that actually exist through republican processes, not deciding on their own what they want the laws to be.
Good for Sessions. He’s limiting Justice for the broader cause of justice. Good for all of us. This returns power to the people and our elected representatives – exactly where it belongs.
Yellowhammer Contributing Editor Quin Hillyer, of Mobile, also is a Contributing Editor for National Review Online, and is the author of Mad Jones, Heretic, a satirical literary novel published in the fall of 2017.