In a November 17 memorandum, Attorney General Sessions prohibited DOJ agencies from using “guidance” documents to circumvent rulemaking. A DOJ Task Force charged with identifying existing regulations and guidance for repeal, replacement or modification, updated its list in a press release issued on December 21, 2017.
Of the 25 guidance documents withdrawn in 2017, ten of them involve guidance issued under ADA Title II and III, which DOJ enforces. Nine of these were documents issued by the Clinton and George W. Bush administrations between 1995 and 2008. They include early guidance provided by DOJ, including “ADA Myths and Facts” (1995), “Common ADA Errors and Omissions in New Construction and Alterations” (1997), and the basic “Title II Highlights” and “Title III Highlights” (last revised in 2008). In the ADA, Congress expressly charged DOJ with providing technical assistance on the law. All of the publications withdrawn were designed to translate requirements into formats easily understood by businesses and consumers. Although some of these guidance documents have since been superseded in part by later regulations, many provided illustrations that are still usable.
This latest action should be considered in the context of DOJ’s prior action this year of withdrawing or reconsidering ADA Title II and III regulations that were on the Obama Administration's list of priorities. The ADA was enacted with broad bi-partisan support and signed by George H.W. Bush. The DOJ's Disability Rights Section has been relatively apolitical under subsequent administrations, with only modest swings in enforcement approaches and priorities. That appears to have changed, with this latest action a further signal that ADA enforcement may be rolled back.