President Donald Trump‘s much-anticipated deregulation executive order, signed last week, goes further than anything he did in his first term. Not only does it require agencies to eliminate 10 regulations for every new one, but it also directly targets guidance documents, the unaccountable tools federal bureaucrats have long used to impose regulations without going through formal rulemaking.
And there’s plenty of guidance that needs to go.
For years, agencies have misused guidance to sidestep public input and impose sweeping mandates without congressional approval. Trump’s executive order takes aim at this practice, ensuring that guidance is treated as the regulatory action it truly is. One example? The Department of Education’s last-minute guidance on name, image, and likeness, the policy that allows college athletes to earn money through sponsorships and endorsements.
Just before leaving office, the Biden administration issued a directive forcing schools to apply Title IX equity rules to NIL deals—a move with major implications for college athletics, made without public input.
The NIL guidance requires schools to apply Title IX’s sex-based equity mandates to NIL deals, demanding that opportunities be distributed “equitably” between male and female athletes. But college sports don’t work that way. Football and men’s basketball generate the lion’s share of revenue, and NIL deals naturally follow. The guidance, however, sets up schools for legal uncertainty, opening the door to federal investigations and lawsuits if the Department of Education’s Office of Civil Rights decides their NIL opportunities aren’t “fair.”
More importantly, this wasn’t a law passed by Congress or even a formal regulation subject to public review. It was an unelected bureaucrat’s memo, issued with the stroke of a pen, bypassing transparency and accountability. And NIL is far from the only example — guidance is used to impose unfunded mandates on Medicaid, dictate policing practices, and even regulate the wording of local traffic signs.
At the Center for Practical Federalism, we’ve been tracking this abuse of guidance across agencies, and the problem is only growing. That’s why Trump’s executive order is so significant: It doesn’t just clean up the mess Biden and previous administrations left behind, it ensures guidance is treated as regulation, subject to cost limits and review.
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But one executive order isn’t enough. In 2020, the Trump administration required agencies to publicly disclose their guidance and clearly label it as non-binding, a critical first step. But for real, lasting reform, Congress must act to codify limits on guidance abuse, preventing agencies from using it as a backdoor for sweeping policy changes.
The NIL directive is a textbook case of why this matters. It’s time to restore proper boundaries on agency power, and Trump’s executive order is the first major step in the right direction.
Jennifer Butler is a Senior Policy Advisor at State Policy Network’s Center for Practical Federalism.