Domesticating Guidance

This Essay, written for an occasion celebrating the scholarship of Professor William Funk of Lewis & Clark Law School, builds in good part on his analyses of soft law documents — statements of general policy and interpretive rules — that today one generally finds discussed under the rubric “guidance.” These are agency texts of less formality than hard law regulations adopted under the procedures of 5 U.S.C. § 553, that inform the public how an agency intends to administer its responsibilities, as a matter of policy or (what may seem just one instance of that) via the interpretation of its governing statutes or regulations. The APA is explicit that in adopting these texts, agencies are not required to use the notice and comment process ordinarily required for the adoption of regulations having the force of law; but it also signals that, like agency caselaw precedent, guidance may be relied upon to a private party’s disadvantage if it has been published or come to its actual notice. Guidance documents, revealing agency policy and perhaps showing the way to safe compliance, can structure the behavior of agency staff and be highly influential for the regulated; but they are not in themselves enforceable against actors in the outside world — hence, soft law. Typically, they are the product of agency staff, and do not (as regulations do) require the imprimatur of the agency’s political leadership for their adoption.\nDocuments like these are common worldwide in regulatory contexts, much more numerous than regulations (as regulations are more numerous than statutes). In American administrative law they have often been caught up in disputes whether the notice and comment procedures engaging the agency’s political leadership needed to have been used for their adoption. Judicial concerns are that ostensible soft law has often been used to evade the increasingly demanding obligations associated with notice and comment rulemaking. A common test has been whether, although nominally soft law, they are “practically binding.” The basic arguments of this Essay are, first, that this approach fails to differentiate highly desirable internal agency law (that is, policies “binding” on some agency staff) from what impermissibly “binds” the public; and, second, that soft law instruments can often be found “final” for purposes of judicial review — if they are, in effect, the agency’s internal law — and that use of the equitable standards for declaratory judgment long ago endorsed for pre-enforcement review of rulemaking will then permit dealing with the legality of soft law on its merits, and not as a matter of procedural compliance. Questions about “Auer deference” that the Supreme Court addressed in Kisor v. Wilkie twelve weeks after the celebration of Professor Funk are also briefly addressed.

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