Federal agencies repeatedly govern Americans through documents that are not supposed to carry the force of law. In theory, these “guidance documents” should merely explain how an agency is interpreting existing statutes and regulations. In practice, however, they often function as a shortcut around the lawmaking and rulemaking processes.
That should concern anyone who cares about accountable government.
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Congress writes laws. Agencies may issue regulations, but only after following procedures laid out in the Administrative Procedure Act — including public notice and an opportunity for citizens to comment. Guidance documents were never meant to replace that process. Yet over the past several decades, agencies have increasingly used guidance to announce sweeping policy changes, pressure states and businesses into compliance, and expand their own authority without rulemaking.
HOW CONGRESS CAN CLAW BACK ITS OVERSIGHT POWER
A new research report by Pacific Legal Foundation explores recent trends in agencies’ use of guidance. The scale alone is staggering. By September 2020, federal agencies had identified more than 73,000 guidance documents, at which point a process for tracking guidance was initiated. Under the Biden administration, that number surged by roughly 46% in just two years, climbing well above 100,000 documents. Many are undoubtedly benign. But quantity matters because guidance is notoriously difficult to track, and regulated parties often treat it as binding regardless of its legal status.
That dynamic creates a serious constitutional problem.
Imagine you are a business owner, school administrator, or state official who receives guidance from a federal agency warning that noncompliance could trigger investigations, lawsuits, funding cuts, or enforcement actions. Sometimes they say it’s not technically binding. But in practice, you wouldn’t want to test that by failing to comply.
The result is regulation by intimidation. Agencies gain the practical benefits of lawmaking without undergoing the political accountability or procedural safeguards that actual lawmaking requires.
Recent examples illustrate the problem. In 2021, the Department of Education issued guidance asserting that Title IX’s prohibition on sex discrimination extended to gender identity and sexual orientation based on the Supreme Court’s Title VII employment-discrimination decision in Bostock v. Clayton County. The guidance effectively imposed new conditions on schools receiving federal funds. A federal court later concluded the department exceeded its authority and failed to follow required rulemaking procedures.
That same year, the Justice Department issued guidance concerning state election audits, suggesting certain audits could violate federal law and warning that the department would use “every tool in [its] arsenal” to enforce compliance. Regardless of one’s views on election policy, the episode demonstrated how guidance can be paired with enforcement threats to influence state conduct in areas traditionally administered by the states themselves.
The practice extends well beyond culture-war disputes. In 2023, federal agencies dramatically revised merger guidance governing antitrust enforcement. The new framework altered how regulators evaluate mergers and acquisitions, increasing uncertainty and compliance burdens for businesses across the economy. Because the changes came through guidance rather than legislation or rulemaking, agencies effectively reshaped antitrust policy without congressional authorization.
This matters because process is substance in administrative law. The notice-and-comment process exists for a reason. It forces agencies to justify policy changes publicly, respond to criticism, and consider unintended consequences before imposing new obligations on the public.
Guidance documents evade those protections.
To be clear, agencies do need some ability to explain how they interpret laws and exercise discretion. But there is a critical difference between explaining existing law and effectively creating new policy through informal pronouncements. That line has become increasingly blurred.
The first Trump administration attempted to address the issue through an executive order that required agencies to make guidance publicly available and emphasized that such guidance should be nonbinding in both law and practice. The Biden administration revoked those limits and later finalized a Justice Department rule removing restrictions on the use of guidance documents that remains in effect.
Congress and the executive branch should revisit the issue now.
FIXING THE ADMINISTRATIVE STATE STARTS WITH CURTAILING GUIDANCE MEMOS
At a minimum, agencies should be required to maintain searchable public guidance portals and clearly disclaim that guidance lacks the force of law. More importantly, courts and lawmakers should scrutinize agency actions that use guidance to impose substantive new obligations without formal rulemaking.
The public should not have to guess whether a document labeled “guidance” is actually a command. Nor should unelected bureaucracies be permitted to bypass the safeguards that accompany real rulemaking to regulate through informal decrees backed by implied threats.
Mitchell Scacchi is the strategic research manager for the separation of powers at Pacific Legal Foundation. Nick Clifford is a federal policy counsel at Pacific Legal Foundation.
