Last week, a little-noticed change in federal employment discrimination policy took place. Federal officials are now only to investigate claims of intentional discrimination. In the past, the federal Equal Employment Opportunity Commission could consider statistics on the proportion of employees in protected groups when evaluating potential employer discrimination. It might initially seem strange that a significant change of this nature would occur with so little notice – no congressional hearings or floor debates; no presidential statements. That is because this significant legal change took place without any change in formal law. Rather, it was a shift in informal “guidance” by different federal agencies.
In an interesting twist, Utah has become a national leader among the states in responding to the question of such guidance, which raises important issues of political polarization, government centralization, and lack of transparency. Utah legislators have made a great step in responding to the problem of agency guidance but will need to continue to build on that foundation.
One of the most important structural aspects of the United States Constitution is the assignment by “we the people” of different responsibilities to the state and national governments. This division, which we call federalism, ensures that most of the decisions that affect us are made by representatives who are accessible and close by, while allowing the national government to address matters it is uniquely suited to handle, such as relationships with other nations.
Federalism has sometimes been misleadingly described as “states’ rights,” suggesting a contentious competition for power, but the relationship is intended to be constructive, with each level making a complementary contribution. There will, of course, be tensions between the two, but the Constitution itself creates a framework for resolving them.
One source of tension is the growth over the last half-century of federal administrative power. The theory is that executive branch agencies are supposed to enforce laws enacted by Congress. In practice, though, they often create regulations that surpass, in volume and detail, the laws they are supposed to be carrying out.
These formal regulations are not all that agencies do. They also create a large body of “agency guidance.” This consists of emails, letters, handbooks, and similar communications that express the agency’s opinions about how state and local governments, schools, businesses, and individuals should comply with the law. This guidance is not technically binding, but those who are regulated by the agencies have a strong incentive to comply with the guidance to maintain good relationships with regulators and to avoid costly enforcement actions.
This practice raises obvious separation of powers concerns. The legislature, not the executive, has lawmaking authority. It also hampers the ability of states to carry out their responsibilities.
One reason for this is that agency guidance is not transparent. It is not collected in one place or necessarily made available online. Thus, if the U.S. Department of Education sends a “Dear Colleague” letter to a school in Arizona with directions about how to conduct school discipline, there is no process for the state’s school board or elected officials to be informed about what the state’s schools are being asked to do by the federal government.
This is where Utah’s Legislature has made its important contribution.
In 2025, the legislature enacted a law requiring federal guidance received by state officials to be made public and posted online. In the 2026 session, the legislature included Utah schools in this requirement and asked state officials to assess the likely financial impact on the state of federal guidance.
It is significant that support for these laws has been entirely bipartisan. Ensuring the people of the state and their representatives are aware of direction from federal agencies, and can challenge it where necessary, is not a party issue.
As control of the federal government changes, it is not surprising that the party not in power will take an increased interest in federalism and turn its focus to state and local policies where it can have an influence. This turn needs to become not only a tactic, but a matter of principle.
Utah’s recent efforts demonstrate how this can happen. Focusing on increased transparency of federal directions is a simple step all legislators could support. It also creates a framework for the state’s response to future guidance.
The legislature should build on this initial step. Future bipartisan efforts could focus on publicizing what the state is learning about agency guidance, working with the state’s federal delegation to push back on guidance that is at odds with laws enacted by Congress, and encouraging other states to follow their lead.
