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 learn more about the series, click here.

President Donald Trump came into his second term laser-focused on dismantling the administrative state. But here’s the uncomfortable truth: unless we confront its favorite weapon — federal agency guidance — we are only swinging at shadows.

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Guidance — whether memos, bulletins, “Dear Colleague” letters, FAQs, or even blog posts — never goes through public notice-and-comment, rarely appears in the Federal Register, and is often used to push politicized policies.

Wayne Crews of the Competitive Enterprise Institute calls it “regulatory dark matter”: everywhere, shaping everything, and largely invisible. During Trump’s first term, an executive order forced agencies to reveal more than 100,000 guidance documents, proof of just how vast the corpus is. President Joe Biden later rescinded the order, and the regulatory dark matter crept back.

Big-government apologists insist guidance is harmless — just agencies “explaining” the law. Practitioners know better. States, schools, and businesses ignore “nonbinding” guidance at their peril. A memo waved by a federal bureaucrat can turn a suggestion into a standard, a “pilot” into a mandate, and a preference into a prerequisite for keeping funds flowing or avoiding scrutiny. This is how policy spreads without votes, transparency, or accountability.

YES, TRUMP CAN FIRE BUREAUCRATS WHO BLOCK HIS AGENDA

Consider a few examples from the Biden administration. The Justice Department warned that post-election audits and routine voter-roll maintenance could trigger violations, pushing states to back off without solid legal grounds. Federal banking regulators told big banks to fold climate change into their risk models — far outside their job of protecting deposits — pressuring smaller banks to follow suit without any law behind it. And in K-12 schools, officials warned that racial differences in suspension rates could spark investigations, prompting districts to weaken discipline policies and leaving classrooms less safe.

State Policy Network’s Guidance Tracker has flagged some of the most egregious cases where agencies stretched or ignored the law. But that only scratches the surface. While the Trump administration has rescinded or tweaked some of the most high-profile examples, more than 100,000 guidance documents remain on the books, with countless more buried in dusty agency binders and web subpages. The dark matter of the administrative state is vast, and now is the time for a major cleanup.

We have the tools.

First, aim the DOGE-AI flashlight at guidance, not just formal rules. The Department of Government Efficiency is already using AI to cut outdated regulations. That same tool should be turned on guidance. Every agency should upload all guidance — official and unofficial — into a central portal for an AI-assisted audit: What contradicts law? What embeds political preferences, like DEI or climate “equity,” as if they were mandates?

The goal is simple: eliminate the unlawful, simplify what’s confusing, and clear out the bureaucratic underbrush.

Second, reissue and strengthen the guidance-transparency executive order. Agencies should have to publish all guidance — past and future — online in an easy-to-access website. Then, states, schools, and businesses can see exactly what’s active and what’s rescinded. Sunlight makes it harder for agencies to slip new mandates into the system without accountability.

Third, and most urgent, use the Congressional Review Act to block future administrations from weaponizing guidance. Just three days before leaving office, the Biden Department of Justice finalized a rule that erased the previous administration’s limits on using guidance in enforcement, a move designed to keep actions built on guidance alive. But it also gives Congress an opening: overturn the rule now and make the prohibition permanent. That would stop future Justice Departments from meddling in the elections or weaponizing civil-rights law against schools and states. If you want a fast, clear win against administrative-state unaccountability, start here.

CLICK HERE TO READ MORE FROM THE ‘REFORMING THE DEEP STATE’ SERIES

States also have an important role. They run Medicaid, SNAP, transportation, and education. When Washington’s “preference papers” masquerade as law, state priorities get displaced, budgets get bent, and elected officials are reduced to compliance officers for the permanent federal bureaucracy. States don’t have to accept this. They can push back by refusing to comply, and better yet, they can pass laws that bring more transparency and oversight.

If we’re serious about reforming the administrative state, we can’t just prune the regulatory tree while letting guidance choke the roots. Real reform means eliminating what’s unlawful, exposing what remains through a transparent portal, and ensuring no bureaucrat can ever use guidance as a backdoor weapon again.

Jennifer Butler is a Senior Policy Adviser at State Policy Network’s Center for Practical Federalism.