Concerns Rise Over Federal Agencies' Use of Guidance Documents to Bypass Lawmaking
Backdoor rulemaking: The government’s obsession with guidance
Image: Washington Examiner
Federal agencies are increasingly using guidance documents to govern without the formal rulemaking process, raising concerns about accountability and transparency. A report highlights a surge in such documents under the Biden administration, leading to potential intimidation of businesses and states.
- 01By September 2020, federal agencies had identified over 73,000 guidance documents, with that number increasing to over 100,000 under the Biden administration.
- 02Guidance documents often function as a means for agencies to impose new policies without following the required notice-and-comment procedures mandated by the Administrative Procedure Act.
- 03The Department of Education's 2021 guidance on Title IX and the Justice Department's guidance on state election audits exemplify how agencies use guidance to exert influence.
- 04In 2023, federal agencies revised merger guidance, altering antitrust enforcement without congressional approval, raising compliance burdens for businesses.
- 05The Biden administration revoked previous restrictions on guidance, prompting calls for greater scrutiny and transparency in agency actions.
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Federal agencies in the United States have increasingly utilized guidance documents to govern without adhering to the formal rulemaking process, which raises significant concerns regarding accountability and transparency. A report by the Pacific Legal Foundation reveals that the number of such documents surged by approximately 46% under the Biden administration, surpassing 100,000. While guidance documents are intended to clarify existing laws, they often serve as a means for agencies to impose new policies, effectively bypassing the required public notice and comment procedures outlined in the Administrative Procedure Act. This trend has created a climate of intimidation for businesses and state officials, who may feel pressured to comply with guidance that is not legally binding. Notable instances include the Department of Education's 2021 guidance on Title IX and the Justice Department's warnings regarding state election audits. The 2023 revision of merger guidance further exemplifies how agencies can reshape significant policies without congressional oversight. Experts advocate for enhanced scrutiny of agency actions and clearer public access to guidance documents to ensure that the public is not misled about their legal status.
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Businesses and state officials may face increased compliance burdens and legal risks due to the reliance on guidance documents.
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