• Federal bureaucratic agencies issue enormous amounts of “guidance” that is extremely influential, even though it is not legally binding and sometimes at odds with the actual law.
• The Utah Legislature has recently passed legislation to make the guidance sent to state officials by federal agencies transparent by posting it online.
• A survey of Utah voters found that though many Utahns were not aware of the existence or significance of guidance, they support the Legislature’s efforts to make federal agency guidance more transparent.

Introduction

Every time the presidency changes hands, the country feels some whiplash as the new president rushes to implement signature policies and get rid of those from the previous administration. The current administration has been particularly notable because in addition to new executive orders, President Donald Trump is acting to reimplement policies that were removed by President Joe Biden just four years ago.

These changes can have real consequences, since more and more of what we think of as “law” is not what is passed by Congress as described in the U.S. Constitution, but rather regulations created by executive branch agencies. As important as these are, though, there is a lesser-known source of federal direction. And although it is far more voluminous than formal regulations, it is largely opaque since, unlike those regulations, there are no requirements that it be made public by the agencies that issue it.

This important source of federal direction is called “agency guidance.”

Federal guidance

In addition to formal regulations that are treated as having the force of law, federal agencies often give informal directions that are intended to explain legal requirements to those who could be affected by them. This could include state officials, schools, private businesses, or individuals. Unlike formal regulations, which can only be issued after being formally proposed and receiving comments from the public prior to being made official, this guidance is not legally binding.

This does not mean it is insignificant, though. The relationship between a federal agency and those it regulates is typically an extended one, and the agency has the power to provide needed funding or mete out penalties to the regulated entity. So the nature of that relationship provides strong incentives for states and others to accept the guidance, even when that guidance goes beyond explaining existing law to imposing new requirements. Those being regulated are motivated to abide by nonbinding guidance to demonstrate a good-faith effort to comply with the law or to preserve a working relationship.

Some guidance – that which merely explains laws passed by Congress or formal regulations – can be helpful to those being regulated, but there are plenty of examples of agency guidance that goes much further. Just before Biden left office, for instance, the U.S. Department of Education published guidance that requires schools to ensure that male and female athletes benefit in in the same way from the money earned by college athletes for their endorsements or sponsorships. In practice, this means that the department announced that it had new authority to determine whether endorsements and similar earnings by athletes are being handled fairly by universities. So, if a popular female athlete at a university gets a lucrative sponsorship, the department could decide that the school is engaged in illegal discrimination if it does not ensure a similar amount of support is going to male athletes at the school. Whatever the merits of this approach, it is clearly the type of requirement that should be part of formal law, not just agency advice.

Transparency concerns

That recent Department of Education guidance got some attention, but the reality is that most federal guidance is done without public scrutiny. A careful study by the Administrative Conference of the United States called the volume of agency guidance “oceanic” and relayed an observation: “Nobody really knows the volume of agencies’ guidance, said a trade association official, but it is orders of magnitude greater than that of legislative rules.”

This means that, for instance, state officials might be receiving guidance that significantly impacts their work, but that state legislators and other elected officials would not necessarily have any access to the federal agency guidance making this impact. Thus, they cannot push back if they believe the guidance exceeds binding legal requirements.

To respond to this concern, the first Trump administration issued an executive order to federal agencies directing them to make guidance documents available online. Biden rescinded this order on his first day in office.

As it stands now, there is no requirement that agency guidance be made transparent.

Utah Legislature’s response in 2025

Expanding on a model from Tennessee, Utah’s Legislature has considered a bill that would require Utah agencies to publish guidance they receive from federal agencies. This guidance would be provided online so that legislators, state officials and the public can know what federal agencies are asking state agencies to do. At the state level, this would inject some of the transparency missing at the federal level.

The bill has been approved by the Utah Senate and House and is now awaiting the governor’s approval.

Y² Analytics survey data

Knowing that federal guidance transparency would be considered in the Utah Legislature’s 2025 session, Sutherland Institute included this topic in a poll on voters’ attitudes by the polling firm Y² Analytics. The survey was conducted on a sample of 610 Utahns who are broadly representative of the state’s demographics.

The results suggest strong support for Utah’s approach.

Initially, an important finding is that nearly half of Utahns are not really aware of the issue of federal guidance. Only 47% said they were aware of “the concept of ‘guidance’ from federal agencies,” while 43% said they were not, and 10% were unsure.

Given this, it is probably not surprising that a majority of Utahns support transparency in federal agency guidance.

Strong support for guidance transparency was reported by 55% of respondents, while an additional 29% said they “somewhat” supported the idea. Only 2% were strongly opposed, and 4% were somewhat opposed.

Support was very strong across the ideological spectrum:  89% of “core Trump voters” (voted only for Trump and Phil Lyman for governor or no other Republicans), 92% of “Republican loyalists” (voted Trump but not Lyman and voted for a Republican in the Senate and governor races), 99% of “conservative or Republican non-Trump voters” (self-identified Republican or conservative who did not vote for Trump), and 88% of “non-conservative, non-Trump” (did not vote for Trump and does not identity as conservative or Republican) voters supported federal guidance reform.

Both men (95%) and women (87%) support guidance transparency.

All age demographics also supported the reform effort: 18-34 (80%), 35-44 (86%), 45-54 (99%), 55-64 (98%), and 65+ (96%).

Those who completed all or some of high school reported 100% support, while those with some college reported 88% support, compared with 87% support for those with a college degree and 92% for those with a post-graduate degree.

Conclusion

Good governance is a pressing issue right now, and Utah may make an important contribution by increasing transparency in the directions the federal government gives to the state. This modest effort could be an important model for other states, and the strong public support it has in Utah suggests that it would likely be welcome elsewhere.