What Is “Guidance? Nothing More Than a Rule in Disguise

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What Is “Guidance? Nothing More Than a Rule in Disguise

Published: Friday, June 12th, 2020 @ 9:50 am
By: John Locke Foundation ( More Entries )

Publisher's note: The author of this post is Brenee Goforth for the John Locke Foundation.

You may remember from School House Rock that the way an idea becomes a law is it is introduced to the legislature as a bill and passed through the legislative process. Unfortunately, that process has become muddled throughout the years, as Jon Sanders explains in his latest research brief. Sanders writes:

Rules created by a state agency can carry the full force of law. But in our system of government, legislators are the ones who make law. How are agencies able to make rules? Because "lawmaking" authority was delegated to them by the legislature so they could create rules to implement the laws passed by the legislature.

This power is supposed to be highly limited, but it's easy to abuse. There is a multistep process for creating a new rule, and the legislature can vote to disapprove a rule, but the actual disapproval votes are rare. It's much easier to create a rule than stop one.

What goes even more undetected than rules is guidance. Sanders explains:

Some executive agencies have also discovered it's even easier to skip the whole process of making a rule altogether, and instead issue "guidance" statements and other documents that they then police and enforce as if they are rules. Regulation expert Clyde Wayne Crews Jr. calls them "regulatory dark matter":

"Regulatory dark matter" refers to the thousands of executive branch and independent agency actions including guidance documents, proclamations, memoranda, bulletins, circulars, letters and more that are subject to little scrutiny or democratic accountability but carry practical, binding regulatory effects.

A new bill in the General Assembly could tackle this issue for the Division of Social Services. Sanders writes:

A proposed committee substitute to House Bill 612, sponsored by Reps. Sarah Stevens (R-Alleghany), Dennis Riddell (R-Alamance), and Donna McDowell White (R-Johnston), would do the following:

Have DSS identify and report to the Office of Administrative Hearings (OAH) by May 31, 2021, all of its “policies, guidelines, and other interpretive statements” that actually function as rules according to the official state definition of a rule— those would be rules in violation of the state’s rulemaking procedures

Have DSS go over this report with OAH to determine which policies, guidelines, and other interpretive statements are in violation of the state’s rulemaking procedures, with any disputes going through the Rules Review Commission and then to Superior Court

Classify all such rules discovered in this process as interim rules, not permanent

Require action on those interim rules by July 1, 2022 — if they haven’t been formally adopted as rules, then they are repealed

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