170 State Officials to Trump: End Biden-Era Guidance Weaponization
An unprecedented coalition of state officials is backing the Center for Practical Federalism’s call to end the weaponization of federal guidance.
Today, we sent President Trump a letter signed by 170 elected officials from 36 states urging him to help Congress establish lasting protections against this form of federal overreach. Their support reflects growing momentum behind one of our top priorities: protecting states from federal agencies that treat informal directives as binding law.
The letter calls for Congress to require agencies to make their guidance publicly accessible and for the Department of Justice (DOJ to address a Biden Justice Department rule that removed restrictions on using guidance in federal enforcement.
When Guidance Becomes a Mandate
Federal guidance includes agency memoranda, “Dear Colleague” letters, FAQs and policy statements. As our guide to federal agency guidance explains, these documents can clarify existing law, but they cannot create new legal obligations.
Yet agencies routinely cross that line. Our Weaponized Guidance report, by Senior Policy Advisor Jennifer Butler, documents how the Biden administration turned informal interpretations into pressure on states in areas including elections, environmental policy and gender identity. Supposedly nonbinding documents became tools for investigations, settlements and litigation.
States fought back in court. But even when they prevailed, they spent taxpayer dollars defending their laws and operated under legal uncertainty. In election administration, that uncertainty is especially consequential: Courts may not resolve a federal challenge to state procedures before ballots are cast and certified.
Two Reforms to Protect States
President Trump has already rescinded President Biden’s 2021 executive order revoking Trump’s first-term restrictions on agency guidance. But executive orders can change with each administration. States need protections that will last.
First, the Senate can pass the Guidance Out Of Darkness, or GOOD, Act. The legislation would require agencies to publish their guidance online in a searchable, centralized location. It has passed the House with bipartisan support and advanced unanimously through the Senate Homeland Security and Governmental Affairs Committee.
If an agency is telling states, businesses or Americans how it interprets the law, the public should be able to see it.
Second, DOJ and Congress can work together to address the Biden Justice Department’s rule, Processes and Procedures for Issuance and Use of Guidance Documents. Finalized just three days before Trump returned to office, the rule cemented the repeal of restrictions on using guidance in criminal and civil enforcement actions.
As we have previously explained, addressing the rule could also offer an opportunity to establish lasting protections against its reinstatement. That makes it an opportunity to constrain future administrations, too.
An opportunity after Election Day
The short lame-duck session offers Congress a chance to advance the GOOD Act and build support for further guidance reforms. With limited time and substantial unfinished business, support from the White House and Justice Department will be critical to identifying a path forward.
The 170 signers have made clear that this deserves Washington’s attention. Together, these reforms would make guidance easier to scrutinize and help prevent agencies from turning it into an enforcement weapon. Those protections would serve red and blue states alike, regardless of which party controls the White House.
Guidance has a legitimate role in explaining the law. It should not become a substitute for making it.