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.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.
