Throughout this week, the Washington Examiner‘s Restoring America project will feature its latest series, “Reforming the Deep State: Reining in the Federal Bureaucracy.” We invited some of the best policy minds in the conservative movement to speak to the issues of what waste, fraud, abuse, and unaccountability exist throughout the federal government and what still needs to be done. To read more from this series, click here.

The rule of law is impossible if federal administrative agencies make secret, informal laws with little to no oversight from elected lawmakers. And yet, this is exactly what has been happening in the United States for many years. It’s time for Congress to rein in this practice and restore the principle of separation of powers to our constitutional order.

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In the Schoolhouse Rock song “I’m Just a Bill,” an idea to increase traffic safety by making school buses stop at railroad crossings is proposed as legislation in Congress and approved in committee before it receives a favorable vote in the House and Senate, survives a possible veto, and becomes a law.

But there is a darker sequel to this story in which federal administrative agencies provide state and local governments additional information about how exactly they can comply with the law. Though this is common, it is constitutionally dubious at best, particularly since Congress is enacting fewer laws and the executive branch is filling the void.

The executive branch has two routes for creating state mandates: adopt formal regulations under a process outlined in federal law that requires public notice and an opportunity for the public to comment or provide “guidance.”

Agency guidance is an elastic category of communications, including policy statements made by an agency, the agency’s manuals, letters from agency personnel, frequently asked questions, and possibly even emails and conversations. Guidance is not technically legally binding, but it can act as de facto law because there is a strong incentive for governments, groups, or individuals being regulated by a federal agency to follow the informal guidance the agencies issue to avoid being charged with a violation.

This is particularly true for state officials and agencies that interact with federal bureaucrats on a regular basis. They are likely to feel pressure to follow federal guidance to preserve a good relationship with an agency with which they work closely, which can charge them with violations of federal regulations.

In the imagined sequel to the Schoolhouse Rock presentation, after the traffic bill becomes a law, a federal agency enforces that law as provided for in the Constitution. Not content to do so as Congress approved it, the agency decides it wants to give additional guidance on what that agency thinks the law requires of states. 

Do they need special signs to indicate a railroad crossing? If so, what are the required dimensions of the sign? Is there a specific font? Can the sign include humor? Do approaching trains have to sound their horn before an intersection, even if it’s 1:00 a.m.?

Such guidance could be included in the 1,161-page Manual on Uniform Traffic Control Devices for Streets and Highways, or among the roughly 300 documents on the National Highway Traffic Safety Administration’s “Guidance Documents” website.

In practice, many federal agencies do not even communicate their guidance in these ways. As such, only the recipients of the guidance may be aware of it. This means that state elected officials sometimes don’t know what their state agencies are being asked to do by the federal government, even when complying with the guidance imposes costs on the state that ultimately must be met with state taxpayer money. Even when the guidance is tied to federal grants, those grants could dry up, leaving the state obligated to meet the demands the federal government initially created.

This is a far cry from the constitutional practice described in “I’m Just a Bill.”

In 2019, President Donald Trump issued an executive order to federal agencies requiring them to make agency guidance publicly available online. However, that requirement was revoked by former President Joe Biden on his first day in office.

All executive lawmaking is constitutionally suspect, but this lack of transparency creates a particularly egregious accountability gap.

Utah has enacted legislation requiring state officials to make publicly available the guidance they receive from federal agencies. Tennessee does this with federal guidance directed to the state Board of Education. Such state efforts are a good first step.

CLICK HERE TO READ MORE FROM THE “REFORMING THE DEEP STATE” SERIES

Another option would be for states to require some kind of accounting of the costs incurred, or projected, from agency guidance, such as demands for new infrastructure, compliance monitoring, or hiring new employees. This could be done by legislative or administrative auditors.

Ultimately, Congress must act to rein in the creation of this “regulatory dark matter” and reclaim its role as the lawmaking branch. That is not likely to be easy, but it would go a long way to restoring a central pillar of our constitutional order.

William C. Duncan is a constitutional law and religious freedom fellow for the Sutherland Institute in Utah.