Washington’s loudest cause this year is “shadow regulation.” The Senate’s GOOD Act would force every executive agency to publish its guidance letters, advisories, online FAQs and interpretive memos to a single, searchable portal. It has cleared the House and a Senate committee and now awaits a floor vote.
It will be sold as transparency. It is a gang-up on the cop on the beat.
Guidance is what it sounds like. It is the daily work of administering federal law: the letters that tell businesses, states and individuals how to comply with rules Congress already enacted. It is not legislating. It is the cop on the beat answering calls in districts Congress forgot to redraw.
Strip it away and government stops.
Agencies already publish draft regulations in the Federal Register. The GOOD Act would extend that requirement to the murkier category of guidance—the documents that explain what the law means when real people encounter real circumstances. The mechanism is a registry that turns every interpretive letter into a searchable target for political attack before it has finished its job.
The bill’s premise is that guidance needs policing because it now numbers in the tens of thousands. That gets the diagnosis exactly backward.
The first Trump Administration tried to count the inventory and imposed an executive order limiting how agencies could issue guidance. The tally came to roughly 70,000. By the Biden years, according to Clyde Wayne Crews Jr. of the Competitive Enterprise Institute, the count had grown to approximately 108,000 examples. The figures were undercounts by Mr. Crews’s own admission, because the definition of “guidance” is fuzzy.
Those numbers are not evidence of an agency class running wild. They are evidence of an agency class doing its job.
A country’s economy changes. Technology changes. Its population changes. New hazards appear. Old laws meet new facts. Written statutes cannot answer every question in advance, and Congress does not redraw the law every time a regulated institution asks what compliance requires.
Guidance is the connective tissue of modern government.
Critics call these documents “shadow regulation” because the label produces accountability theater. Guidance does not legislate. It translates. It tells a hospital how an existing rule applies to a new billing practice. It tells a factory what an existing safety standard requires when the machinery changes. It tells a school how Title IX applies to a novel harassment claim.
The Department of Education’s “Dear Colleague” letter on sexual-harassment enforcement responded to decades of unenforced Title IX. That was not an end-run around Congress. It was the law functioning as written.
The Department of Homeland Security’s memo on DACA answered the question of what to do with young immigrants whom Congress had refused to address. That was not executive overreach. It was an agency exercising discretion Congress had delegated to it.
The Obama Administration’s most consequential actions came through this channel for the same reason. Congress had the pen. In every case, it handed the pen to the agency.
The Biden Administration used guidance to discourage politically motivated state audits of election procedures after 2020, attach equity requirements to electric-vehicle charger funding, and update merger-review rules. Those actions answered problems Congress had been asked to solve and declined to solve. Calling that “intimidation” does not make it so. It makes the label a political weapon.
The Biden team scrapped the Trump-era executive order on guidance in 2021 because it was a procedural straitjacket on legitimate implementation work. The order had not restored accountability. It had throttled administration.
The huge spending bills of recent years created more guidance because vaguely defined programs had to be administered by someone. That is normal. That is what administrative capacity is for. Through a pandemic, an inflation shock, a supply-chain emergency and the largest federal infrastructure investment in two generations, the public’s questions multiplied. Guidance multiplied with them.
“You can’t reform a mess until you measure it,” the bill’s champions say, teeing up future deregulation once the inventory is in hand.
The premise is upside down.
The list is not the mess. The policies on the list are the response to the mess. Measuring the response does not reform it. Measuring the response punishes it.
Pouring all that work into a single searchable portal will not make government more accountable. It will centralize the paperwork for easier targeting. Conservative litigators already scrape Federal Register notices by the hour. A unified index would simply hand them a unified target list.
That is the bill’s real gift: not clarity, but ammunition.
Republicans claim to oppose rulemaking by fiat and favor accountable administration. The GOOD Act is consistent with neither. It binds the agencies that operate while leaving Congress, the body that actually writes the laws, untouched.
A search portal does not write statutes. It does not cut a check. It does not staff a hearing room. It surfaces, sorts and files—and waits for the next administration to weaponize the file.
If senators want real reform, they have better options. They can codify major guidance. They can require notice-and-comment for genuinely significant policy interpretations. They can sunset outdated advisories. They can preserve transparency without turning routine administration into a political firing range.
The GOOD Act would substitute paperwork for governance.
The Senate has a few months left before the midterm sunset. It can spend them shining a brighter light on the cop on the beat. Or it can spend them writing the laws those beat cops are interpreting.
Congress is supposed to do the second.
Pass the GOOD Act, and the second is what gets quietly abandoned.
