Laws passed by Congress are archived by subject matter in the U.S. Code. The rules and regulations that incubate in the daily Federal Register are ultimately cataloged in a Code of Federal Regulations now exceeding 186,000 pages.

The numbers of “sub-regulatory” guidance documents, however, swamp both laws and regulations. Guidance documents can include agency memoranda, notices, bulletins, directives, news releases, letters, blog posts, no-action letters, and even speeches by agency officials. The “Guidance Out of Darkess Act” (GOOD Act), which would require agencies to disclose such proclamations on website portals, was recently reported out of the House Committee on Oversight and Accountability on a unanimous 41-0 vote.

A Donald Trump executive order had already required pruning of and a portal-style disclosure of guidance documents. Unfortuately, that was one among several commonsense regulatory streamlining and accountability projects that Joe Biden revoked. Biden even took the extreme step of directing agencies write new rules to repeal the guidance disclosure and accountability citizen-protection rules they had written under Trump.

Before Trump, little existed in the way of consolidated guidance document archives. Prior to his E.O., the House Oversight Committee had managed to persuade reluctant agencies to cough up 13,000 documents in a report called Shining Light on Regulatory Dark Matter.

The Trump portals (kicked off in late 2019) enabled a semi-“countable” corpus of 73,000 documents by September 2020. That was a few months before he left office and the dismantlings ensued.

Surprisingly, though (shhh, don’t tell the White House) the “remnant” portals still accessible vastly surpass the volumes of disclosure available before Trump. One could point to over 107,000 in summer 2022 (a year ago; and one year into the Biden term).

While deterioration has occured since last year, today over 103,642 documents remain accessible via a compilation of links maintained by your humble correspondent. Highlights among this informal Portal’s 100,000-plus were noted earlier elsewhere; and going forward, we plan to maintain a “Shadow Box” showcasing prominent examples of what we affectionately refer to as regulatory dark matter.

The bad news is that locating guidance is a more contorted process now that Trump’s straightforward www.[agencyname].gov/guidance locale is often abandoned. Apart from some seemingly healthy exceptions, few agencies’ self-disclosed inventories can be regarded as confidently updated.

Therefore, until codified requirements to the contrary emerge from the likes of the GOOD Act and other reforms, the presumption must be that agency disclosures intact now are precarious ones and prone to vanish at any moment.

We herein renew our call upon Congress to bring order to a regulatory and guidance document chaos and replace the unofficial Portal we discuss here. This task is made more urgent given the ambitious “whole-of-government” regulatory agenda Biden is inclined to pursue even without the approval of Congress.

With Biden, we find agencies that ought not exist in the first place not merely swimming in their own suspect lanes, but colluding across the executive branch on progressive-wing campaigns like “equity action,” competition policy, “climate crisis,” a costly and compulsory green energy transition, and environmental justice, all facilitated in large part by the now-extraordiary procurement and contracting heft of the federal government. Even artificial intelligence is getting the top-down, unified-front treatment in the wake of Biden’s “bill of rights” and “risk management framework” (among other responses see Treasury’s “Consistency Plan”) and the pressuring of govenment contractors to adopt “blueprints” cartelizing the sector.

Such heirarchical ambitions readily lend themselves to rule by guidance document rather than public notice-and-comment rulemaking. As such, guidance documents need to be cross-referenceable by topic, not just by agency as the GOOD Act specifies.

Notably, amid the precarious grappling with guidance documents, Biden is spearheading a malignant revamp of so-called “Circular A-4” regulatory review procedures. Despite its overarching and comprehensive character, the draft directive largely ignores ascendant rule-by-guidance altogether.

Given the foregoing, some observations on remnant portals follow, with the aim of informing policymakers who may choose to address the rule-by-guidance phenomenon. Presented in no particular order, the observations reflect the disarray and uncertainty that characterize the realm of guidance. In future writeups, we may drill down into a few departments and agencies as well as present recommendations going beyond proposals already offered, such as the institution of a “Code”-style one-stop portal for all departments and agencies, and “species/genus” classifications that enable restraint rather than expansion of the administrative state. Bullets follow:

In conclusion, let us not lose sight of the big picture takeaway that many guidance portals are still there, depite Biden’s renunciation of the Trump project and the deterioration in disclosure. The lesson is that improvements in disclosure can happen head-spinningly fast, but so can decay.

The optimistic take is that Trump set something set in motion that cannot be entirely repealed. Much of the disclosure we're getting now is not that of a Trump-compliant page, yet it comprises revelations unavailable before his tenure. Reformers should build upon what is clearly progress and a profound lesson in the feasibility of transparency and disclosure, however resisted by a bureaucreacy unlikely to embrace it with love.