Guidance Documents Are Rules That Skipped the Line, and Families Pay for It

Imagine a law that was never voted on, never published for comment, never read by a single elected official, and yet a university would rather lose a lawsuit than disobey it. It exists. It is usually four pages long, it begins with "Dear Colleague," and it is called guidance.

Nothing about that word sounds like power. Guidance sounds like a helpful uncle pointing you toward the right exit. But when the uncle controls your federal funding, his pointing has a way of becoming a command. This post is about how that happens, why the Constitution and the statute that was supposed to tame the administrative state both leave the door open, and what a serious reform looks like.

What the Constitution assumed, and what we got

Start where the Founders started. Article I, Section 1 says: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Not some legislative powers. All of them. And Article I, Section 7 prescribes the road a bill must travel: passage by both chambers, then presentment to the President, who signs or vetoes. The road is slow on purpose. Madison wanted a government in which making a binding rule required many people to agree, in public, with their names attached.

Now compare that to a guidance document. It is written by staff. It is signed, if at all, by a mid-level official. It passes through no chamber and no committee. It is not presented to anyone. Yet it tells a school, a bank, a landlord or a farmer what the agency will treat as a violation. The governed read it the way they would read a statute, because the agency intends them to.

The distinction that makes this lawful on paper is one of the oldest in administrative law: a legislative rule binds with the force of law and must be made with public process, while an interpretive rule or policy statement merely explains what the agency thinks the law already says, or how it plans to use its discretion. In theory, guidance is the second kind. In practice, the second kind has a habit of doing the work of the first.

The statute: what the Administrative Procedure Act actually says

The Administrative Procedure Act of 1946 is the general law of agency rulemaking. Section 553, codified at 5 U.S.C. § 553, requires an agency that makes a rule to publish notice of the proposal in the Federal Register, give interested persons a chance to comment, consider what they say, and publish the final rule with a statement of its basis and purpose. That is notice and comment. It is the closest thing the administrative state has to a floor debate: the public gets to object before the rule exists, and the agency has to answer.

Then comes the exemption. Section 553(b)(A) says the notice requirement does not apply "to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." Three loopholes in one clause, and the first two are the wide ones. An agency that labels a document interpretive or a statement of policy may issue it the same afternoon it is drafted.

Why did the drafters of 1946 allow that? There was a reasonable purpose. An agency cannot hold a public hearing every time an employee asks what a regulation means. Inspectors, examiners and claims officers need to know how their bosses read the rules, and the public benefits from learning it. A rule of thumb that tells a field office how to apply an existing regulation is not a new burden. That is the steelman, and it is a fair one: agencies need a fast way to explain themselves, and a procedure that took months to answer every question would paralyze the very enforcement conservatives say they want carried out evenhandedly.

The trouble is not the exemption. The trouble is what the exemption became.

How a memo becomes a mandate

Here is the mechanism, in four steps.

1. The agency announces its reading of a vague standard. A statute says "sex discrimination" or "reasonable" or "adequate," and the agency tells the regulated what it will accept.
2. The regulated cannot afford to test it. An agency can lose a federal contract, a grant stream or an accreditation far faster than a court can rule. A college counsel's job is to keep the institution out of an investigation, not to win a constitutional argument in five years.
3. Compliance hardens into the rule. Institutions rewrite policies to the guidance. Consultants sell training built on it. By the time anyone sues, "everyone follows it."
4. The agency treats the guidance as the standard in enforcement, while the document still says, in a footnote, that it "does not have the force of law."

That footnote is the legal fig leaf. It protects the document from challenge because nothing binding has technically been issued. Meanwhile it is applied as binding. The D.C. Circuit put its finger on this long ago. In Appalachian Power Co. v. EPA (2000), the court held that EPA's guidance on air-permit monitoring was in substance a legislative rule, because the agency was using it to impose requirements the regulations did not contain, and an agency could not do that without going through the process. The court's test was practical: look at what the document does, not what it calls itself. That is the right test. It has never been applied nearly often enough, because the people harmed by guidance rarely have the money or the time to litigate.

The 2011 letter: a case study

The clearest example in recent memory came from the Education Department. On April 4, 2011, the department's Office for Civil Rights sent what it called a "Dear Colleague Letter" to schools receiving federal funds. It addressed sexual violence under Title IX, the 1972 law barring sex discrimination in education programs that receive federal money.

The letter did several things the statute does not say. It told schools to resolve complaints under the "preponderance of the evidence" standard, the lowest in civil law, rather than a higher standard such as clear and convincing evidence. It pressed schools toward limiting the ability of an accused student to cross-examine the accuser. It set expectations for how fast investigations had to move. Whatever one thinks of any of those choices as policy, none was written by Congress, and none went through public comment. The department itself said the letter was only guidance. Colleges treated it as an order, because a federal civil rights investigation with funding at stake is not something a general counsel gambles with.

Students on both sides of campus proceedings lived with the results. The point is not that every complainant was wrong or every accused student wronged. The point is that a question of enormous consequence to young people, the procedures by which a school can brand a student a perpetrator and end his or her education, was settled by a letter that no voter could have opposed at the ballot box and no one had been invited to comment on.

The department rescinded the letter in 2017. Then, in 2020, it did what it should have done in 2011: it issued a rule through notice and comment, with a long public record and responses to the objections. A rule that lasted only as long as the personnel who wrote it and a rule built through process are not the same thing, and the difference is the entire argument for reform. Conservatives are sometimes accused of wanting only to reverse a policy they dislike. The reverse is true: a regulation made through proper process is harder for a future administration to discard, and harder for a hostile court to dismiss.

What Perez did, and what it did not

For decades, one federal appeals court tried to rein in the problem. The D.C. Circuit's Paralyzed Veterans doctrine said that if an agency had already adopted an interpretation of a regulation and then changed it significantly, the new reading had to go through notice and comment. That discouraged agencies from rewriting the meaning of their own rules by memo.

In Perez v. Mortgage Bankers Association (2015), the Supreme Court rejected the doctrine, with all nine Justices agreeing on the result. The Labor Department had reversed its earlier position on whether mortgage loan officers qualified for the overtime exemption, announcing the change in a 2010 Administrator's Interpretation that withdrew an earlier opinion letter, without notice or comment. The Court held that the APA's text does not allow courts to add procedural requirements the statute omits. Section 553 says interpretive rules are exempt, and the Justices were not willing to invent a rule that says otherwise.

That holding is hard to quarrel with as a reading of the 1946 text. It is also where the real story of Perez lies, because three Justices who agreed on the judgment wrote separately. Justice Scalia, writing for himself, argued that the whole problem began with judicial deference: courts defer to an agency's reading of its own ambiguous regulation, so the agency can write a vague regulation and "clarify" it later, with the clarification carrying the weight of law. Justice Thomas went further and questioned whether the deference doctrine was constitutional at all. Justice Alito said the question deserved a fresh look.

Those concurrences did their work. In Kisor v. Wilkie (2019), the Court kept the doctrine but narrowed it sharply, requiring genuine ambiguity, a reasonable agency reading, and a reading that reflects the agency's authoritative and expertise-based judgment. And in Loper Bright Enterprises v. Raimondo (2024), the Court overruled Chevron and held that courts must exercise independent judgment about what a statute means. Both steps reduce the power of guidance, because deference was the engine that turned an agency's say-so into law. Still, neither touches the front end of the problem. A guidance document that is never challenged never meets a judge.

Why families pay

It is easy to treat all this as a lawyer's quarrel. It is not. Guidance costs families in at least three ways.

First, it raises the price of compliance without a vote. A small employer, a parent running a home daycare, a family-owned lender: each must figure out what the agency expects, and each has to hire help to do it. The cost lands on prices, wages and tuition, and no member of Congress ever voted for it.

Second, it takes away the chance to be heard. Notice and comment lets a school board in rural Iowa, a family business in Ohio and a parents' group in Arizona say how a proposal would actually work. Guidance skips that. The people with the most knowledge about consequences are the people the agency has no process to hear.

Third, it destroys predictability. A guidance document can be withdrawn and replaced by the next administration with the same ease it was issued. A family business that built its operations around one reading can find the ground moved when the staff changes. Stable law is a form of wealth, and guidance government is law written in pencil.

The objection: agencies need flexibility

The best argument for the status quo goes like this. Congress writes in broad terms because it cannot foresee every fact pattern. Agencies see the facts. If every pronouncement needed a year-long process, officials would simply stop giving advice, and regulated businesses would be left guessing. Guidance is how the government tells people what it expects in advance, which is more fair than punishing them after the fact.

Part of that is true, and I will not pretend otherwise. Advice has value. A small business is better off with a published explanation than with silence. A conservative who answers the objection with "abolish all guidance" has lost the argument.

But the answer is that advice is one thing and a hidden command is another, and the law can tell them apart. A real guidance document says: here is how we read the rule; you are free to show us a different way that satisfies the law; we will not penalize you merely for departing from this document. A false guidance document says all that in a footnote and does the opposite in the field. The remedy for false guidance is not to ban the honest kind. It is to hold agencies to what the footnote says. If a document is advice, an agency should be barred from treating a departure from it as a violation. If the agency wants it to bind, it must do what Article I and Section 553 both contemplate: propose it, take comment, answer the comments, publish it.

Flexibility is also available inside the process. The APA already allows an agency to find good cause to skip notice and comment in a genuine emergency. That is the proper safety valve. A routine, years-long policy is no emergency.

What reform looks like

Conservatives have put forward a set of workable ideas, and most are ordinary good-government measures.

• A searchable public index. Every agency should post every guidance document in one place, with its date and what it replaces, and a document missing from the index should carry no weight. Executive orders in recent administrations have required versions of this, and they have been rescinded and reissued as the White House changed hands. A statute would not be rescinded by the next President.
• A rule that guidance cannot bind. Congress can say that a violation of guidance alone is never a violation of law, and that agencies may not cite guidance as the basis for an enforcement action or a denial.
• Notice and comment for significant guidance. Where a document will in practice govern the conduct of many people, require the same process as a rule. The White House's own Office of Management and Budget has used the category "significant guidance" for years, so the concept is not new.
• Judicial review without a trick. Courts should be able to hear a challenge to guidance that functions as a rule without waiting for the agency to enforce it, so that a school or a landlord need not first be punished in order to sue.
• Use the Congressional Review Act. The Congressional Review Act treats a "rule" broadly, and Congress has used it against agency guidance. The tool is covered in The Congressional Review Act Lets Congress Veto a Rule, if It Moves in Time. Its deadlines, though, are short, which is why guidance often escapes it.

None of those steps repeals a single program. Each makes the government say, in public, what it intends to enforce. That is not a radical demand. It is the demand of the people who wrote Article I.

Where this fits in the larger argument

Guidance is one thread in a larger pattern. Agencies Write Thousands of Rules a Year While Congress Passes Hundreds of Laws describes the scale of agency lawmaking. Sue and Settle, the Friendly Lawsuit That Writes Rules Without You in the Room describes another way that rules are made out of view. The Administrative Procedure Act of 1946 Was a Truce, and It Still Shows explains why the statute is written the way it is. And The Nondelegation Doctrine Says Congress Cannot Hand Its Job to Someone Else takes up the constitutional question underneath all of it: how much lawmaking power may Congress hand away?

Those are not four separate scandals. They are one: government by people the voters cannot remove, using instruments the voters cannot read.

And I say this with some urgency. The Declaration of Independence charges the King with a long list of abuses, and one of them is that he had "erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance." The remedy the Founders chose was not a bigger boss. It was representative law, made in the open. A government that rules by letter has quietly replaced one with the other.

The case in brief

1. The Constitution vests all legislative power in Congress, and the Administrative Procedure Act requires public notice and comment for binding rules.
2. The APA exempts interpretive rules and policy statements, a reasonable exemption that agencies now use to make rules that bind in practice while claiming they bind in name only.
3. The 2011 Dear Colleague letter shows the pattern: a consequential change in procedures for students, imposed by letter, withdrawn by letter, and only later put through the process Congress required.
4. Perez (2015) confirmed that the APA text exempts such documents, which moves the fix from the courts to Congress; Kisor and Loper Bright have since narrowed the deference that gave guidance its force.
5. The cure is not to ban advice but to make it honest: a public index, a bar on enforcing guidance as law, and full notice and comment for guidance that functions as a rule.

What you can do: pick a federal agency that touches your work, your school or your family, find its guidance page, and submit a comment on any document it has put out for public input, or ask your representative through the representatives page whether she supports a statutory bar on enforcing guidance as law.