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After SCOTUS Chevron Decision, States Should Publish Federal Guidance

Arlington, VA | July 18, 2024 In a landmark decision, the Supreme Court recently overturned the Chevron doctrine in Loper Bright v. Raimondo. Federal agencies will now no longer be able to rely on judicial deference to defend their interpretations of law.  In lieu of aggressive rulemaking, federal agencies may increase their use of sub-regulatory guidance to accomplish policy objectives without public scrutiny. There is no requirement for federal agencies to proactively disclose guidance documents, even though those documents often carry the force of law. States should instead take the lead.
 
Today, the Right on Transparency coalition is releasing a new model policy urging state governments to publish any guidance documents received by state agencies from the federal government. The policy specifically recommends that states disclose guidance in a centralized, state-wide searchable online database, or alternatively, through agency web portals.

Though guidance documents are ostensibly not legally binding on regulated parties, in practice they often carry the force of law and contribute to the overregulation that defines the modern federal administrative state. Many of these guidance documents are sent to states to express the federal government’s views on the state’s obligations and programs they co-administer. Essentially, arcane federal guidance documents often affect state laws and policies. 

The number of guidance documents currently in force (and, for that matter, the total number ever issued) is unknown. In short, there is a complete lack of transparency vital to the functioning of a free society when not even an issuing agency—much less the regulated public—knows where a particular guidance document is housed, or whether it still reflects an agency’s current legal position. 

 
Endorsements:
If you are a member of the media looking to talk to a transparency expert or if your organization is interested in joining the coalition, please contact: 
Kevin Schmidt 
Director of Investigations, Americans for Prosperity Foundation 

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