Governing by Memo: How the Executive Branch Has Learned to Legislate Without Congress
In the spring of 2021, a guidance document issued by a federal labor agency quietly redefined how millions of American workers would be classified for the purposes of wage and hour law. It did not go through Congress. It was not subject to the notice-and-comment rulemaking process that the Administrative Procedure Act requires for binding regulations. It was, in the formal sense, merely an expression of how the agency intended to interpret existing law. In practical terms, it restructured the legal landscape for an entire sector of the American workforce.
This episode is one of hundreds that illustrate a fundamental transformation in how American policy is made. Across administrations of both parties, the executive branch has developed and refined a toolkit of instruments — executive orders, agency guidance documents, interpretive memoranda, and informal policy signals — that function with regulatory force while evading the procedural and democratic constraints that formal rulemaking is supposed to impose.
The Anatomy of a Workaround
Understanding how this system operates requires distinguishing between several instruments that are frequently conflated in public discussion.
Executive orders carry the weight of law for executive branch agencies and can direct sweeping changes in how federal programs are administered, how contracts are structured, and how agencies prioritize their enforcement resources. They are published in the Federal Register and are at least nominally visible. What they lack is congressional authorization for the substantive policy choices they encode — a gap that courts have sometimes, but inconsistently, required administrations to justify.
Guidance documents are a different and, in some respects, more consequential instrument. Issued by agencies to explain how they intend to interpret and enforce existing statutes or regulations, guidance is not technically binding. It does not go through notice-and-comment. It is not subject to cost-benefit analysis requirements. And yet, for regulated entities — businesses, universities, healthcare systems, state governments — guidance from a federal agency carries enormous practical authority. Non-compliance with guidance invites enforcement scrutiny, contract penalties, and reputational risk. The distinction between guidance and binding regulation is, for most regulated parties, academic.
"Agencies have learned that they can achieve most of what a regulation would accomplish through guidance, while avoiding the procedural requirements that make rulemaking slow and legally vulnerable," says one administrative law scholar at a major research university. "It is regulatory policy laundered through interpretive documents."
A Bipartisan Habit
It would be convenient to assign this trend to one political party, but the record does not support that framing. Republican administrations have used executive orders to roll back environmental protections, reshape immigration enforcement priorities, and restructure federal labor contracting requirements — all without legislation. Democratic administrations have used the same instruments to expand worker protections, impose climate-related obligations on federal contractors, and reorient civil rights enforcement across multiple domains.
The Obama administration's use of guidance documents in education policy — most notably the 2011 Dear Colleague letter on campus sexual misconduct, which effectively imposed new investigative and adjudicative requirements on universities receiving federal funding — is among the most cited examples of guidance operating as de facto regulation. The Trump administration reversed many of those guidance documents, again without legislation, and issued its own set of directives reshaping immigration and environmental enforcement. The Biden administration repeated the cycle.
What this bipartisan pattern reveals is not a partisan preference for executive overreach but a structural incentive built into the modern legislative environment. When Congress is gridlocked — which it frequently is — the executive branch faces a choice between inaction and improvisation. Administrations have consistently chosen improvisation, and the tools for doing so have grown more sophisticated with each successive presidency.
The Transparency Deficit
The procedural bypass that guidance documents and informal executive directives represent has a concrete cost: the public and Congress lose visibility into the decision-making process that produces major policy changes.
Formal rulemaking under the APA requires agencies to publish proposed rules, solicit public comment, respond to substantive objections, and document the analytical basis for their final decisions. The record produced by this process is voluminous and reviewable. Courts can — and do — strike down rules that fail to engage adequately with the evidence or that exceed the agency's statutory authority.
Guidance documents generate no such record. The deliberations that produce them are internal. The analytical assumptions that underlie them are not disclosed. The economic impacts are not assessed through the Office of Information and Regulatory Affairs review process that applies to significant regulations. And because guidance is technically non-binding, courts have historically been reluctant to review it — leaving regulated parties in the paradoxical position of being practically compelled to comply with documents they cannot effectively challenge.
"The notice-and-comment process exists for a reason," notes a former OIRA official who served under a Republican administration. "It forces agencies to surface their assumptions, engage with counterarguments, and build a record that can be scrutinized. Guidance avoids all of that. You get the policy outcome without the accountability infrastructure."
Congressional Oversight and Its Limits
Congress has not been entirely passive in the face of this trend. The Congressional Review Act, enacted in 1996, gives Congress the authority to disapprove major rules issued by federal agencies through a joint resolution process. It has been used selectively — most aggressively in the early months of the Trump administration, which used it to repeal a series of regulations finalized in the final days of the Obama presidency.
The CRA's reach, however, does not clearly extend to guidance documents, and courts have not definitively resolved the question. Legislation specifically targeting the guidance document problem — most notably the REINS Act, which would require congressional approval of major regulations, and various proposals to subject significant guidance to CRA review — has passed the House on multiple occasions but stalled in the Senate.
The political economy of reform is complicated by the fact that the party out of power tends to support constraints on executive authority while the party in power tends to defend it. This dynamic has prevented durable reform across multiple congressional cycles.
The Governed Without a Voice
For the businesses, workers, and institutions that must navigate this landscape, the consequences are concrete. Environmental compliance obligations shift with each new administration's guidance updates. Labor classification standards oscillate between interpretive frameworks that carry no formal regulatory status but determine whether companies face enforcement actions. Healthcare providers adjust billing and documentation practices in response to agency sub-regulatory communications that are never subjected to public comment.
The cumulative effect is a regulatory environment that is simultaneously more volatile and less legible than the formal system it increasingly displaces. Regulated parties must track not just the Code of Federal Regulations but an expanding universe of guidance documents, FAQ pages, informal agency communications, and executive orders — any of which may be revised or rescinded without the procedural formality that would signal a change in binding law.
The framers of the Administrative Procedure Act envisioned a system in which major policy choices would be made through transparent, participatory processes subject to judicial review. What has evolved is something considerably different: a system in which the most consequential decisions are often made in the least visible ways.
The memo, it turns out, is mightier than the statute — precisely because no one is required to debate it.