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 print a notice on the first page of any guidance document it issues. That notice would have to state two things: (1) the guidance does not carry the force of law, and (2) it is meant only to explain existing legal requirements or agency policies — not to create new ones. The bill applies to all federal agencies that issue guidance documents.
Who benefits
Businesses and individuals subject to federal regulation who currently receive agency guidance documents and may be uncertain whether those documents create legally binding obligations. Small businesses with limited legal staff who may lack the resources to distinguish binding rules from non-binding guidance. Courts and litigants who challenge agency actions, as the required disclaimer could be cited as evidence that a document is not legally enforceable. Regulated industries across all sectors — from finance to agriculture to healthcare — that interact with federal agencies.
Who is hurt
Federal agencies that use guidance documents as a practical tool to communicate expectations to regulated parties; the required disclaimer could reduce the practical effectiveness of those communications. Members of the public or advocacy groups who rely on agency guidance to understand their rights or protections, if regulated entities use the disclaimer to argue they are not bound by the guidance. Workers or consumers in regulated industries if businesses use the non-binding label to justify non-compliance with agency-communicated standards that were previously followed voluntarily.
Supporters argue
Supporters argue that federal agencies have long used guidance documents — memos, letters, FAQs, and policy statements — to impose expectations on businesses and individuals that function like binding rules, even though they were never subject to the notice-and-comment rulemaking process required by the Administrative Procedure Act. This practice, sometimes called "regulatory dark matter," allows agencies to expand their authority without the transparency and public participation that formal rulemaking requires. By mandating a clear disclaimer on the first page of every guidance document, the bill would ensure that regulated parties know their actual legal obligations and are not pressured into compliance with non-binding agency preferences. This directly reinforces the Supreme Court's reasoning in Loper Bright v. Raimondo (2024), which ended judicial deference to agency interpretations, and West Virginia v. EPA (2022), which held that agencies must have clear congressional authorization for major regulatory actions. The bill restores the constitutional balance between Congress — which makes law — and agencies — which implement it.
Opponents argue
Opponents argue that guidance documents serve a legitimate and necessary function: they allow agencies to communicate their interpretation of complex regulations quickly and clearly, without the months or years required for formal rulemaking. Requiring a prominent disclaimer that guidance "does not have the force of law" could cause regulated parties to disregard agency communications that reflect genuine legal expertise and decades of regulatory experience, potentially leading to inconsistent compliance and harm to the public the regulations are designed to protect. Critics also contend the bill is largely redundant, since courts and agencies already recognize that guidance documents are not legally binding — a principle reinforced by existing administrative law. Furthermore, opponents suggest the bill could create confusion by implying that all guidance is equally non-binding, when in practice some guidance closely tracks statutory text and carries significant interpretive weight. The practical effect, they argue, would be to weaken the ability of agencies to efficiently communicate with regulated industries, increasing uncertainty rather than reducing it.
Constitutional context
The bill operates at the intersection of the separation of powers, the nondelegation doctrine, and administrative law. The Commerce Clause (Art. I, Sec. 8) and the Necessary and Proper Clause authorize Congress to regulate interstate commerce and to structure how that regulation is carried out. The bill reflects concerns raised in West Virginia v. EPA (2022), where the Supreme Court held that agencies must have clear congressional authorization for major regulatory actions (the "major questions doctrine"), and Loper Bright v. Raimondo (2024), which ended Chevron deference and directed courts to independently interpret statutes rather than defer to agency readings. By requiring agencies to disclaim legal authority in guidance documents, the bill codifies a principle already embedded in post-Chevron administrative law. Due Process (5th Amendment) is also relevant, as regulated parties have a constitutional interest in fair notice of what the law actually requires.
Checks and balances
The bill shifts interpretive authority away from the Executive Branch (federal agencies) and toward the Judicial Branch and Congress. By requiring agencies to affirmatively disclaim that guidance does not carry the force of law, it reinforces congressional supremacy in lawmaking and strengthens the hand of courts — which, post-Loper Bright, now independently judge agency interpretations — when evaluating whether an agency has exceeded its statutory authority. Agencies lose some practical leverage they currently hold through guidance documents.
Historical precedent
Executive Order 13891 (2019) required agencies to treat only notice-and-comment rules as binding and to publish all guidance documents in a central online repository. That order was revoked in 2021. The Office of Management and Budget's 2007 "Final Bulletin for Agency Good Guidance Practices" similarly required agencies to label significant guidance as non-binding. This bill would codify a similar requirement in statute for the first time.