To Restore Separation of Powers, Agency Guidance Must be Reined In

It’s a problem and anyone who pays attention knows it. Executive agencies and the bureaucrats who populate them have become extremely emboldened. They act as if they are the ones tasked with creating, enforcing, and interpreting law. This is why presidential elections are ever increasingly important. All functions of government are performed within the executive, despite the Constitution never intending that to be the case.

Congress, as we all learned in elementary school, was the originally intended body of government tasked with creating the laws themselves. But over time, Congress has ceded more and more of its job to the various executive branch agencies. Now, those agencies perform pseudo-legislative functions where they are able to pass regulations that hold the same force and effect as law.

For regulations to be created, they must both be given the authority (“delegation”) to do so by Congress and go through rulemaking, which requires the agency to state its intentions for a proposed regulation and then allow the public to issue comments to argue for or against the proposed regulation. This requires both time and political exposure to create a fully promulgated regulation.

But, despite that, a less understood tactic is still used by the agencies—some might say the deep state—to continue imposing their will upon the people by using agency guidance. Guidance is very simple: an agency authors a document on how it believes the law should be enforced. It does not go through any legislative and rulemaking processes, nor does Congress have to authorize it. And, it is often treated by the public—and sometimes even government and the courts—as if it is law that they must follow.

This is dangerous. An agency can make all sorts of creative interpretations of the law and can easily be wrong. Yet, the parties that fall within the regulatory jurisdiction of the agency are often leveraged into following that interpretation out of fear of being administratively prosecuted.

For example, President Biden “interpreted” Titles VII and IX of the Civil Rights Act to mean that “sex” actually means “gender identity.” Regardless of one’s views on the underlying issue, this guidance was used to leverage employers and educational institutions into accommodating men in women’s spaces, sports, etc., despite not in any way being settled law.

To be clear: agency guidance does not have the force or effect of law, especially now in light of the recent Loper Bright decision. It is merely the agency’s recitation of how it intends to enforce the law. But, despite this, agency guidance can still invoke fear. It can still change behaviors and have the effect of law.

Clearly, more needs to be done. One step is op-eds like this one, which help the public understand what guidance even is. Education can help the public understand that it does not have to treat guidance as if it has the weight of the law behind it.

But more can be done by Congress, too. One potential great step has been detailed in a currently pending bill called the Guidance Clarity Act. If passed, agencies would be required to put on all agency guidance documents a disclaimer stating that:

 “The contents of this document do not have the force and effect of law and do not, of themselves, bind he public or the agency. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.”

In effect, this law would neuter the misperception that agency guidance is in any way authoritative or binding. Additionally, it states unequivocally that the document is not within the scope of what Congress has delegated to the agency. While other steps may help address the problem of agency overreach, too—such as attorney’s fees provisions for erroneous agency prosecutions or removing the prosecutions to federal court—the Guidance Clarity Act would be a great step.

Progress has been made. The Loper Bright decision overturned the infamous Chevron decision. This now limits an agency’s ability to interpret ambiguous laws in such a manner that the courts would have to defer to the agency’s interpretation. This development was significant because, under Chevron, there was effectively no process for citizens to question the agency’s interpretation of the law. This momentum should be used to further rein in the administrative state.