Resources &
Frequently Asked Questions

“Guidance” is a catch-all administrative law term describing a variety of pronouncements from government agencies to explain, interpret, or advise interested parties about rules, laws, and procedures. “Guidance” encompasses “Dear Colleague” letters and no-action letters, agency manuals and bulletins, memoranda and notices, speeches by cabinet and sub-cabinet officials, news releases and blog posts, even remarks on conference calls or webinars.

These pronouncements from federal agencies set policy without first going through the process of becoming a law (an act of Congress) or a rule (a formal part of the Code of Federal Regulations, or CFR).

Here is what is important: “Guidance” is an interpretation of the law—it is not the law.

No. Guidance is not the law. The law is established by an act of Congress. Rules are established by going through the Administrative Procedure Act. A law or rule is binding. “Guidance” is an interpretation of a law or rule. Often that interpretation advances the current president’s political agenda.

Guidance is often treated like law even though it is not. State and local officials may move forward to implement instructions from Washington, D.C. without first asking whether the interpretation is valid or whether it conflicts with state law. As a result, state policy is overridden by unelected officials.

The Constitution charges Congress to make laws, and the President to execute them. Improper guidance violates that principle as cabinet and sub-cabinet officials use it to make policy and move the law in line with their ideological agendas. Passing a law through Congress allows the American people to be heard through their elected representatives and reflects the give-and-take and compromise inherent in building congressional majorities. Adopting a rule through the formal regulatory process provides transparency, public comment, and accountability. Guidance undermines these core democratic values by regulating under the table. It also undermines state and local self-governance by overriding laws passed by elected leaders with the choices of unelected bureaucrats.

States and localities should not automatically accept guidance as law when a state agency official says the federal government has announced a new policy. State leaders and program administrators should insist on seeing the specific basis for the new pronouncement. If it is based on guidance, they can push back. And they should not be bullied by threats to cut federal funding, which are rarely, if ever, executed. Instead, the state’s lawyers should evaluate whether the guidance can be challenged—many guidance documents that purport to bind states or stakeholders are successfully stopped in court for failing to go through the necessary regulatory process like the Administrative Procedure Act.

State and local leaders should care about guidance that may supplant the policies they believe are best for their state or community with agenda-driven policies from Washington, D.C., all without going through the democratic process. Citizens and community leaders should be vigilant to ensure policy that is in conflict with their beliefs and values is not imposed by unelected bureaucrats in Washington.