HR-2409-119
Placed on the Union Calendar, Calendar No. 490.
Sponsored by Eric Burlison (R-MO)
What it does
This bill would require every federal agency to include a standardized disclaimer — called a "guidance clarity statement" — on the first page of any guidance document issued under the Administrative Procedure Act. The statement would explicitly tell the public that the guidance does not have the force of law and does not legally bind either the public or the agency. The Office of Management and Budget would have 90 days after enactment to issue implementing instructions, and agencies would have 30 days after that to begin complying.
Who benefits
Businesses and individuals regulated by federal agencies who may not have known that guidance documents are non-binding and could have felt compelled to comply as if they were law. Small businesses and sole proprietors with limited legal counsel who are least equipped to distinguish binding rules from non-binding guidance. Regulated industries such as financial services, healthcare, agriculture, and energy that frequently receive agency guidance. Legal advocates and courts seeking clearer records of what agencies intended as binding versus advisory. Taxpayers broadly, if the bill reduces costly compliance with non-binding agency positions.
Who is hurt
Federal agencies that rely on guidance to achieve policy goals quickly — without going through the full notice-and-comment rulemaking process — may find their guidance carries less practical weight. Beneficiary groups (e.g., environmental, consumer, or civil rights organizations) that depend on agency guidance to protect their interests may see regulated parties more readily disregard that guidance. Agency staff who use guidance to communicate expectations may face increased uncertainty about compliance behavior. Parties who benefit from the predictability that widespread voluntary compliance with guidance currently provides.
Supporters argue
Supporters argue that federal agencies have long used guidance documents to effectively impose binding obligations on regulated parties without going through the notice-and-comment rulemaking process required by the Administrative Procedure Act — a practice sometimes called "regulatory dark matter." They contend that businesses, especially small ones without legal teams, routinely treat agency guidance as mandatory, giving agencies de facto lawmaking power that Congress never authorized. The bill's required disclaimer would simply make explicit what the law already says: guidance is not law, and no one is legally required to follow it.
Opponents argue
Opponents argue that the bill could undermine the practical effectiveness of agency guidance that serves important public interests — such as safety advisories, environmental standards, and civil rights enforcement guidance — by signaling to regulated parties that they can freely disregard it. They contend that while guidance is technically non-binding, it often reflects agencies' best interpretation of complex statutory requirements, and widespread non-compliance could increase litigation and regulatory uncertainty for everyone. Critics also argue the bill addresses a problem that existing executive orders and agency policies already handle, making it largely redundant while potentially weakening regulatory clarity.
Constitutional context
This bill directly engages the post-Loper Bright v. Raimondo (2024) legal landscape, in which courts no longer defer to agency interpretations of statutes and instead exercise independent judgment. By codifying that guidance documents do not have the force of law, the bill aligns statutory text with the current judicial posture and reinforces the nondelegation principle under Art. I, §1, which reserves lawmaking power to Congress. The bill does not itself raise a constitutional challenge but responds to the same structural concern — that agencies have exercised quasi-legislative authority without clear congressional authorization.
Checks and balances
Congress gains authority by limiting the practical reach of executive agency guidance; the primary check on agencies is the required disclaimer itself, with OMB providing implementation oversight and courts retaining authority to assess whether any guidance was applied as if it were binding law.
Historical precedent
Executive Order 13891 (2019) required agencies to treat guidance as non-binding and publish guidance documents publicly, covering similar ground; it was revoked by Executive Order 13992 (2021), which illustrates the recurring policy tension this bill seeks to resolve through statute rather than executive action.