Originally published in the Washington Examiner.

Rule of law is impossible if federal administrative agencies are making secret, informal laws with little to no oversight from elected lawmakers. And yet, this is exactly what has been happening in the United States for many years. It’s time for Congress to rein in this practice and restore the principle of separation of powers to our constitutional order.

The Schoolhouse Rock song, “I’m Just a Bill,” describes how an idea to increase traffic safety by making school buses stop at railroad crossings is proposed as legislation in Congress, approved in committee, receives a favorable vote in the House and Senate, survives a possible veto, and becomes a law.

But there is a darker sequel to this story in which  federal administrative agencies provide state and local governments additional information about how exactly they can comply with the law. Though this is common, it is constitutionally dubious at best, particularly since Congress is enacting fewer laws and the executive branch is filling the void.

The executive has two routes for creating mandates for states: adopt formal  regulations under a process outlined in federal law that requires public notice and an opportunity for the public to comment, or it can provide “guidance.”

Agency guidance is an elastic category of communications, including policy statements made by an agency, the agency’s manuals, letters from agency personnel, FAQs, possibly even emails and conversations. Guidance is not technically legally binding, but it can act as de facto law because there is a strong incentive for governments, groups, or individuals who are being regulated by a federal agency to follow the informal guidance the agencies issue so as to avoid being charged with a violation.

This is particularly true for state officials and agencies that interact with federal bureaucrats on a regular basis and are likely to feel pressure to go along with the federal guidance to preserve a good relationship with an agency with which they work closely, and which can charge them with violations of federal regulations.

In the imagined sequel to the Schoolhouse Rock presentation, after the traffic bill becomes a law, a federal agency enforces that law as provided for in the Constitution. Not content to do so as Congress approved it, the agency decides it wants to give additional guidance on what that agency thinks the law requires of states.

Do they need special signs to indicate a railroad crossing? If so, what are the required dimensions of the sign? Is there a specific font? Can the sign include humor? Do approaching trains have to sound their horn on approaching an intersection even if it’s 1:00 am?

Such guidance could be included in the 1,161-page Manual on Uniform Traffic Control Devices for Streets and Highways, or among the roughly 300 documents on the National Highway Traffic Safety Administration’s “Guidance Documents” website.

In practice, many federal agencies do not even communicate their guidance in these ways. As such, only the recipients of the guidance may be aware of it. This means that state elected officials sometimes don’t know what their state agencies are being asked to do by the federal government, even when complying with the guidance imposes costs on the state that ultimately must be met with state taxpayer money. Even when the guidance is tied to federal grants, those grants could dry up, leaving the state with an obligation to meet the demands the federal government initially created.

This is a far cry from the constitutional practice described in “I’m Just a Bill.”

In 2019, President Donald Trump issued an executive order to federal agencies that required them to make agency guidance publicly available online, but that requirement was revoked by President Joe Biden on his first day of office.

All executive lawmaking is constitutionally suspect, but this lack of transparency creates a particularly egregious accountability gap.

The state of Utah has enacted legislation to require state officials to make publicly available the guidance they receive from federal agencies. Tennessee does this with federal guidance directed to the state Board of Education. Such state efforts are a good first step.

Another option would be for states to require some kind of accounting of the costs incurred, or projected, from agency guidance, such as demands for new infrastructure, compliance monitoring, or hiring new employees. This could be done by legislative or administrative auditors.

Ultimately, Congress must act to rein in the creation of this “regulatory dark matter” and reclaim its role as the lawmaking branch. That is not likely to be easy, but it would go a long way to restoring a central pillar of our constitutional order.