What Is “Guidance? Nothing More Than a Rule in Disguise | Eastern North Carolina Now

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

Go Back

Leave a Guest Comment

Your Name or Alias
Your Email Address ( your email address will not be published)
Enter Your Comment ( no code or urls allowed, text only please )

Did You Know? UNC’s Plan for Fall John Locke Foundation Guest Editorial, Editorials, Op-Ed & Politics We Might Be Witnessing a Cultural Revolution


Latest Op-Ed & Politics

Homeland Security Secretary Alejandro Mayorkas complained on Monday of a “broken immigration system” when asked to respond to a warning from New York City Mayor Eric Adams about the migrant crisis.
HuffPost White House correspondent S. V. Date used the 22nd anniversary of the September 11th terrorist attacks to claim that former President Donald Trump was worse than “Osama bin Biden.”
After years of being totally obscured by Lizzo's shadow, her backup dancers have finally had enough.
Hundreds of gun owners took to the streets of Albuquerque over the weekend to openly carry their firearms in defiance of the state’s Democrat governor, Michelle Lujan Grisham, who unilaterally decided to suspend laws allowing open and concealed carry in the area.
Florida Governor Ron DeSantis responded on Thursday to a Daily Wire report about a land developer in Texas who has created an expansive settlement north of Houston where thousands of illegal immigrants are believed to have settled, saying that he, as president, will put an end to it.
Residents of a small Texas border town have expressed their sympathy for New York City as it buckles under the weight of a few thousand migrants.


Texas Governor Greg Abbott shared a video on social media this week showing President Joe Biden’s Border Patrol cutting razor wire that the state of Texas had placed alongside on the Rio Grande to stop illegal aliens from flooding into the country.
Mourners were joined by current and former politicians Monday for a somber ceremony marking the 22nd anniversary of the September 11, 2001, terror attacks.
Residents of the Village of Bald Head Island, a small community located off the coast of Brunswick County, are facing a substantial 21% tax hike as part of the recently approved budget by council.
A.I.-generated supermodels are turning heads and garnering millions of followers with their slim, lithe, fake bodies showing off fake bikinis and elegant, non-existent gowns.
No paper deeds leave your property rights at the mercy of the internet.
There is a growing push for legislation to bar wealthy foreign billionaires like Switzerland’s Hansjorg Wyss from pouring hundreds of millions of dollars in support of leftist causes in the United States
Late Tuesday evening, Senate Bill 90, previously known as the Searches of Student’s Person bill, was almost entirely revised and reintroduced in the House under the new name of the Children’s Law Omnibus bill.


Scott Smith: "What should scare every American is that I had to take this, because I could not trust our justice system"
Cooper wants expensive and unreliable wind and solar
Former hedge fund executive Dave McCormick announced Thursday evening that he was launching another bid for U.S. Senate in Pennsylvania as Sen. Bob Casey (D-PA) becomes more vulnerable as a result of President Joe Biden’s failures as president.
The United States Congress has passed a trillion-dollar stopgap bill that will allow the federal government to continue functioning until about 2 p.m. tomorrow.
Tens of thousands of U.S. State Department emails were stolen by a group of China-based hackers who breached Microsoft’s email platform earlier this year, according to a Senate staffer.
Virginia Governor Glenn Youngkin refused to completely rule out jumping into the 2024 Republican Party presidential primary when pressed about the matter over the weekend.


Back to Top