Guidance documents include interpretive rules and policy statements issued by agencies, ostensibly to advise the public about how they interpret the laws and regulations they enforce. However, agencies frequently use this tool to change policy and impose new requirements on private parties. This research in brief explores the effects of Executive Order 13992 in 2021, which reversed restrictions on agency use of guidance, and highlights egregious examples of agencies’ use of guidance documents to bypass the notice-and-comment rulemaking process and issue binding regulations.

Key Findings:

• From fall 2020 to summer 2022, the number of federal guidance materials grew 46 percent, from more than 73,000 to almost 110,000, where it has roughly remained to date.
• Stark examples of binding regulations infiltrating guidance documents include enforcement of Title IX of the education amendments of 1972 with respect to discrimination based on sexual orientation and gender identity, federal law constraints on post-election audits, and the addition of equity to the National Electric Vehicle Infrastructure formula program.

Policy Implications:

• Presidential administrations can rein in abuses of guidance by issuing executive orders. Congress can do so with the Congressional Review Act, by which it can (a) prevent future presidential administrations from easing guidance restrictions or (b) review and strike down existing and future guidance that takes the form of a rule.

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