In 2025, the federal government issued the fewest new rules of any year since counting began in the 1970s. Though that is a win for limited government, it doesn’t tell the whole story of the regulatory state. Because most regulations these days aren’t rules.
The federal rulemaking process is governed by the Administrative Procedure Act. It includes notice-and-comment periods for feedback from stakeholders, allows affected businesses and individuals to sue when they believe they are wronged and requires that rules be published for everyone to see.
It is often easier for a government agency to issue a rule than it is for Congress to pass a law. That’s why most of what the federal government does today is from agencies rather than Congress.
But in recent years, the locus of government action has shifted again. Those process requirements from the APA are burdensome, so rather than issue rules, agencies increasingly issue “guidance.”
A bill that passed the House by voice vote last March would give Americans a little more transparency into what the Competitive Enterprise Institute calls “regulatory dark matter,” the non-laws and non-rules that make up a growing share of the federal government’s work. The Guidance Out Of Darkness Act, or Good Act, would require agencies to publish all their guidance documents in one place for the public to access.
As the bill’s definition of “guidance document” illustrates, agencies have numerous avenues to regulate outside the rulemaking process. Memorandums, notices, bulletins, directives, news releases, letters, blog posts, no-action letters and speeches by agency officials can all carry policy import.
Many of these documents are public already, but some are not. And they cannot all be accessed in one place. The laws Congress passes are compiled into the U.S. Code. The rules agencies issue are compiled in the Code of Federal Regulations. The Good Act would create an equivalent one-stop shop for guidance documents.
In his first term, President Donald Trump moved toward a compilation of guidance documents in an executive order. When President Joe Biden undid Trump’s orders, as is tradition, it got thrown out. Passing the Good Act, which has been sitting in limbo in the Senate, would ensure that doesn’t happen again.
Whether someone thinks government should regulate more or less, there is nothing controversial about making it easier to know all the rules. As agencies make more regulations through guidance rather than rules, disclosure and publication requirements need to catch up to reality.
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