How agencies make law without making law
“Nonbinding.” In government parlance, it means a document doesn’t carry the force of law—that it’s guidance, not a mandate.
So why did an agency “guidance document” carry enough legal weight to prevent a family-owned Alaska business from moving its pipe storage operation to a larger lot—land bordered by a junk car dealer, a scrap metal dealer, and a concrete products supplier? When Flowline Alaska purchased 455 acres in North Pole for exactly that purpose, the Army Corps of Engineers reviewed the property and declared 200 of those acres off-limits as federally protected navigable waters under the Clean Water Act. The authority for that determination wasn’t a statute or a formally promulgated rule; it was a guidance document called the Alaska Supplement. And the “navigable water” was permafrost.
Richard Schok had built Flowline Alaska into a successful family business fabricating and insulating pipe for the North Slope oil fields. The new property was supposed to be the next chapter: more space, more capacity, more jobs. But the Corps’ determination stopped the expansion cold.
Schok spent years fighting the decision through every available administrative channel, arguing that the Alaska Supplement had no legal authority to supersede the congressionally mandated 1987 national wetlands manual—a manual the public actually had a say in crafting, and under which permafrost could never qualify as a wetland. He lost at every level. PLF took the case to the Supreme Court, which declined to hear it in 2019.
“Nonbinding,” it turned out, was cold comfort when it could still bring the full force of federal enforcement to your doorstep.
The Alaska Supplement is still on the books, and new research from Pacific Legal Foundation explores how federal agencies have turned guidance documents into a primary tool of policymaking—writing rules without rulemaking, imposing obligations without accountability, and growing the total number of federal guidance documents to more than 100,000.
What guidance is supposed to be
Federal agencies issue thousands of guidance documents every year—interpretive rules, policy statements, letters, memos—ostensibly to help the public understand the laws and regulations they are subject to. In theory, guidance is supposed to be nonbinding. Agencies are required to make binding rules through a different process: congressional authorization and then rulemaking subject to the Administrative Procedure Act.
Guidance is also supposed to be public, but without a formal requirement to consolidate and maintain it in one place, it often isn’t findable in any practical sense.
As Schok learned, “nonbinding” describes the document’s legal status, not its practical effect. When an agency decides to enforce its guidance, the consequences for the person on the receiving end are indistinguishable from the consequences of a formal rule.
What guidance became
As of fall 2020, after an executive order from the first Trump administration required agencies to maintain updated portals of their documents (a requirement that has since been reversed), the federal government had catalogued more than 73,000 guidance documents across federal agencies. By summer 2022, that number had grown to more than 107,000—a 46% increase in just two years. For three consecutive years, total federal guidance material stayed above 100,000 documents.
Some of that guidance did what it was supposed to do. But the research documents a pattern of agencies using guidance to do what they are permitted to do only through formal rulemaking: impose new requirements, expand their own jurisdiction, and change policy. All this is done without giving the public a meaningful chance to respond.
For example, the Federal Highway Administration added equity distribution requirements to an EV infrastructure grant program through a guidance update—requirements that were never in the original statute. The Office of Management and Budget revised its guidance on federal regulatory analysis in ways that, according to regulatory economist Susan Dudley, “appear[ed] designed to steer analytical results to support this administration’s policy preferences, rather than present objective evidence.” The FTC and DOJ jointly rewrote merger enforcement standards through guidance, creating what one economist described as a “government always wins” standard for antitrust enforcement—without a single public comment.
The through line is the same in every example: An agency used a document that was officially nonbinding to adopt a new policy it chose not to pursue through the proper process.
What needs to change
To check this agency overreach, guidance should be treated like what it actually is. When an agency issues a document that functions as a binding rule, it should go through the process Congress designed: notice and comment under the Administrative Procedure Act and submission to Congress for review under the Congressional Review Act (CRA). Guidance that skips that process but has all the hallmarks of a policy change that will be enforced is shadow lawmaking.
Presidential administrations can issue an executive order or a new rule requiring that guidance be treated as nonbinding, which would restore the distinction between guidance and law—and require that all guidance be made publicly available, so that the people subject to it can at least find it.
Congress can act, too. The Congressional Review Act gives Congress the power to strike down rules—including guidance documents that function as rules—before they take effect. Not only does passage of a CRA resolution nullify a rule; it also prevents a future administration from promulgating a substantially similar rule. PLF’s federal agenda calls for exactly that, along with requiring that significant regulations be approved by both chambers before going into effect.
The fight isn’t limited to Washington either. PLF supported Nebraska’s LB565, which would have prohibited state agencies from treating regulatory advisories as enforceable law. The bill did not advance—but the need for reform at every level of government remains.
Grounds for optimism
The courts are becoming a more level playing field than they once were. The Supreme Court’s 2024 decision in Loper Bright overturned Chevron deference, meaning agencies can no longer be the final word on the scope of their own authority. But the shadow rulebook remains.
When agencies make law through the back door, the public loses its voice in the process. The price is paid by people like Richard Schok, who spent years being told that the frozen ground beneath his feet was a navigable waterway.
