How reassuring. State Attorneys General spared the courts from having to wrestle with a “manual” whose legal force amounted to little more than the opinion of a sufficiently loud circle of advocates.
That alone tells you something important.
Had that manual possessed genuine force of law—properly enacted, properly codified, properly binding—the Attorneys General would not have prevailed so easily. Courts do not casually discard statutes. They interpret and apply them. If the text had been law in the formal sense, the fight would have looked very different.
Which brings us back to first principles.
In a functioning democracy, laws are made by legislators. Not by agencies drafting guidance. Not by advocacy groups writing frameworks. Not by coalitions issuing recommendations that later acquire an aura of inevitability.
Legislators—elected representatives—follow a defined procedure. A bill is introduced. It is debated, amended, negotiated. It passes through chambers. It is signed. It is published. Only then does it enter into force, again through a defined process. The text, however imperfect, is at least identifiable. It has authors. It has votes attached to it.
The executive branch enforces those laws. The judiciary interprets them and resolves disputes. Each branch checks the others. Each operates within boundaries.
This architecture did not materialize casually.
It emerged in response to systems where power flowed from a single source—absolute monarchs who could declare law by decree, unburdened by procedure. The separation of powers, the insistence on formal legislative processes, was designed as a bulwark against concentrated authority. It was meant to prevent the tyranny of the few and anchor governance in the consent of the governed.
That is the theory.
Yes, practice is messier. Yes, legislatures pass sprawling statutes filled with vague language. Yes, agencies are granted rulemaking authority within defined limits. The executive can issue regulations to implement laws. But those regulations cannot legitimately supersede the legislature. They derive authority from statutes; they do not create authority out of thin air.
At least, they are not supposed to.
In the real world, activists have become adept at exploiting the gray zones. They draft “guidance.” They produce “frameworks.” They publish “best practices.” These documents begin as opinions. Over time, they are cited, referenced, embedded in administrative processes. Agencies adopt them informally. Courts encounter them as if they were standards. Financial institutions treat them as binding. What began as advocacy acquires the texture of law.
The transformation is subtle.
No vote. No recorded roll call. No formal enactment. Yet compliance becomes expected. Noncompliance becomes risky. And suddenly, private actors behave as though a statute exists where none was ever passed.
That is how principles erode—not through dramatic coups, but through incremental blurring.
The recent outcome underscores the point. The manual failed because it lacked true legal footing. It was persuasion dressed up as authority. The Attorneys General did not defeat a law; they exposed the absence of one.
But the pattern remains concerning.
If quasi-legal documents can shape behavior, influence enforcement, and pressure institutions without passing through legislative scrutiny, the constitutional architecture begins to hollow out. We are left with governance by memorandum. Policy by insinuation.
Cleaner laws would help. Tighter drafting. Clearer boundaries on delegated authority. Explicit prohibitions against treating non-binding guidance as enforceable mandate. Transparency around who authors what, under which authority, and with what legal consequence.
The alternative is drift.
And drift, over time, resembles the very concentration of power the system was designed to prevent.
Procedure may be slow. It may be imperfect. But it is the price we pay to avoid rule by proclamation. If we allow manuals and manifestos to acquire the force of law by cultural osmosis, we should not be surprised when the distinction between advocacy and authority disappears.
That line matters.
https://wattsupwiththat.com/2026/02/14/u-s-judges-saved-from-alarmist-tome/