Throughout your life, you’ll receive guidance from friends, family members, and coworkers on everything from major life decisions to everyday problems. You may listen to that advice, weigh it carefully, and even follow it, but you don’t have to. Guidance is supposed to inform your choices, not make them for you. Put simply, guidance is meant to guide, not bind.

Government guidance documents ostensibly serve the same purpose. Agencies’ interpretations and policy statements—the documents collectively known as “guidance”—are meant to give the public and regulated parties a heads up as to how an agency understands an existing law or regulation or how it intends to use its discretionary power.

These interpretations and statements are supposed to be guidelines for others, not requirements. But the reality is that guidance has become a nebulous mass of agency material that often shapes federal policy and imposes obligations beyond normal lawmaking and rulemaking processes. This is the subject of my recent report published by the Pacific Legal Foundation in partnership with State Policy Network’s Center for Practical Federalism.

Over the last quarter century, federal agencies have increasingly deployed guidance to affect major policy changes. Examples range from the Bush administration limiting risk-assessment methods for the cleanup and disposal of polychlorinated biphenyls and the Obama administration’s memorandum announcing Deferred Action for Childhood Arrivals, to the first Trump administration establishing a new Medicaid policy on its website’s FAQ page and the Biden administration expanding the definition of “sex” under Title VII to prohibit employment discrimination based on sexual orientation and gender identity.

While these policy changes are disguised as mere guidance, they often include language that’s every bit as binding as rules and regulations. One study even found that “guidance documents use, on average, slightly more binding language than legislative rules do” and that “guidance documents are in fact slightly more likely to be binding.” When the Biden administration issued guidance asserting authority over states’ audits of their elections, the Department of Justice said it would use “every tool in [its] arsenal,” including criminal penalties, to enforce compliance.

Because guidance comes in many different forms—from formal documents and letters to press releases and FAQs—we don’t know how much guidance material exists, let alone how much is currently in effect. While previous administrations have tried, there’s no comprehensive inventory of guidance documents across the federal government. But what we do know is that “its volume is oceanic.”

In its review of agencies’ use of guidance, the US House Committee on Oversight found more than 13,000 guidance documents issued from 2008 through 2018 by just 27 agencies. In the first official count of federal guidance materials after President Trump issued an executive order requiring public inventories, the Trump administration identified 73,424 documents as of September 2020. During the Biden administration (after the public-inventory requirement was revoked), the Competitive Enterprise Institute’s Clyde Wayne Crews, Jr., found that guidance activity grew, reaching upwards of 100,000 total documents in 2022, 2023, and 2024.

But because there’s no durable government-wide system for cataloging all this activity, the total volume of guidance is difficult to track and inconsistently reported. Agency and third-party counts of guidance often diverge sharply. For example, as of late 2025, one researcher found 48,921 guidance documents from the US Department of Health and Human Services (HHS), whereas an HHS portal listed only roughly 4,700 as of May 2026. We know there’s a lot of guidance out there, but we don’t know exactly how much.

When prior administrations show a willingness to use an informal tool with little oversight or procedural safeguards to effect significant policy change without the rigors of the Administrative Procedure Act or the Constitution, it’s easy to see the temptation to use that same tool to make “better” policy than the last guys in charge. That’s in part why agencies’ use of guidance has increased so rapidly over the last 25 years, creating a system in which guidance too often binds rather than guides and has become difficult to track. What’s harder is choosing to cabin that abuse and return to the more rigorous processes already in place. But that’s precisely the kind of difficult choice required to return the federal government to lawful policymaking.

There are ample reforms that Congress or the executive branch could adopt to rein in agencies’ abuse of guidance. Policymakers could require agencies to maintain comprehensive public inventories of their documents. We’ve done this before; it’s worth doing it again. They could subject significant guidance, or any guidance that effectively binds, to review, in the same way that major rules are subject to review by the Office of Information and Regulatory Affairs. Congress could use the Congressional Review Act to overturn problematic guidance that should’ve been promogulated through the formal rulemaking process, preventing future administrations from issuing substantially similar guidance.

There is a role for guidance when it helps the public understand existing laws and agencies’ interpretations. But when agencies use it to impose new legal requirements, they undermine transparency and accountability. Returning guidance to its proper, nonbinding function is key to maintaining the rule of law and the separation of powers.

Mitchell Scacchi is the strategic research manager for the separation of powers at Pacific Legal Foundation.