Backdoor rulemaking: The government’s obsession with guidance

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