When “guidance” becomes government by fiat
Federal agencies often describe guidance documents as informal and nonbinding. But as Jennifer Butler, a senior policy advisor at the Center for Practical Federalism explains in a new policy brief, that is rarely the end of the story.
Guidance too often has become a shadow form of regulatory compulsion that doesn’t have to go through Congress or formal rulemaking.
The Title IX “Dear Colleague” letters from the Office for Civil Rights offer a telling example. A statute enacted by Congress to expand equal opportunity in education in 1972 has, through agency interpretation, increasingly been used to advance contested social policy questions far beyond the plain expectations many Americans associate with Title IX. Just as important, those interpretations have shifted from one administration to the next, creating uncertainty for schools and states trying to maintain compliance with aggressively worded “guidance.”
Butler’s report points out that this pattern intensified under the Biden administration, with guidance used across election administration, environmental justice, civil rights enforcement, and climate permitting. What looks like a memo or FAQ on paper can become an enforcement playbook in real life.
For those who care about federalism, the problem is straightforward: states are too often forced to treat “guidance” as if it were law. Butler points to reforms Congress and the states can pursue, including Congressional Review Act action and stronger state-level transparency and review mechanisms. It’s another reminder of the important work of oversight by state lawmakers in today’s hyper-politicized culture.
I offer some of my own thoughts in a new video highlighting the report:
—Ray Nothstine
— The Federalism Beat