ARTICLE CONTENTS INTRODUCTION 2125 I. GUIDANCE AND OFFICIAL CONDUCT 2139 A. The Problem Presented: Deferred Action and Texas v. 2140 United States B. Law Without Force: The Normative Weight of Official 2144 Duty II. EXTERNAL EFFECTS OF GUIDANCE 2156 A. Externalizing the "Internal Point of View" 2158 B. The Reviewability of Guidance: Title VII Enforcement 2163 Policy III. INTERPRETIVE RULES AS NONBINDING GUIDANCE 2173 A. The Practice of Regulatory Interpretation: Title IX, 2175 Sexual Harassment, and Sexual Violence B. Binding Language in Nonbinding Interpretations 2178 C. Regulatory Interpretations Before the Courts 2186 IV. RELYING ON GUIDANCE 2195 A. Guidance and Social-Movement Mobilization 2196 B. Reliance and Reason Giving 2201 C. Reliance on Official Recognition 2207 CONCLUSION 2216 INTRODUCTION
During Barack Obama's presidency, administrative agencies issued several controversial guidance documents that attempted to push the boundaries of social inclusion. The Department of Education issued a Dear Colleague letter interpreting statutory and regulatory norms against sex discrimination in education to encompass an obligation on federal-education-grant recipients to adjudicate claims of sexual assault and harassment. (1) The Equal Employment Opportunity Commission (EEOC) issued guidelines on when the use of arrest-and-conviction records in employment decisions may constitute racial discrimination under Title VII of the Civil Rights Act of 1964. (2) The Departments of Justice and Education jointly issued guidance on the application of the civil rights laws to transgender persons. (3) In each case, the agencies implemented regulatory laws that concern racial or gender inclusion in various social spheres. The resulting guidance documents sought to delineate the scope of that inclusion. They stated that schools must ensure that campus interactions do not create a hostile environment that excludes people from access to education because of their sex; federal grantees must ensure transgender persons are not excluded from facilities that are consistent with their gender identity; and employers should ensure that they do not, without sound business justification, exclude persons arrested for or convicted of a crime from labor-market participation.
The Obama Administration's deferred-action immigration programs likewise sought to extend the sphere of political recognition. The Department of Homeland Security (DHS) issued enforcement memoranda, listing criteria to be considered in deferring deportation proceedings against persons who unlawfully entered the United States as children, (4) or who entered unlawfully and have children who are citizens or lawful permanent residents. (5) The former policy, known as Deferred Action for Childhood Arrivals (DACA), states that its purpose is to specify how the government should "enforce the Nation's immigration laws against certain young people who were brought to this country as children and know only this country as home." (6) The latter policy, known as Deferred Action for Parents of Americans (DAPA), similarly declares that "[t]he reality is that most individuals" who may qualify for deferral "are hard-working people who have become integrated members of American society." (7) Both DACA and DAPA therefore invoke these individuals' social grounding in the United States as a reason to allow them to remain in the country and gain a qualified, protected status--a claim their longstanding presence in the territory makes upon the American people and government.
Such policies on social inclusion were noteworthy for not only what they expressed but also how they expressed it. They were issued not through regulations with the force and effect of law, but rather through Dear Colleague letters, enforcement memoranda, and enforcement guidance, all of which lack binding legal status. (8) The distinction between regulations and guidance is grounded in the Administrative Procedure Act of 1946 (APA), which lays out procedural requirements for agency rulemaking, including provision of notice and opportunity for public comment. (9) The APA exempts from these requirements interpretive rules and "general statements of policy." (10) The courts have interpreted this "guidance exemption" (11) to apply to agency documents that lack legal force either because the agency does not "intend [ ] to bind itself" (12) by those documents or because they do not have "binding effect." (13) Whether guidance issued without notice and comment is procedurally valid therefore depends in the first instance on whether it has such binding qualities. (14) If it does, then the guidance may be an invalid legislative rule, issued outside the procedures required by the APA. Disputes over guidance documents thus often turn on whether their terms are binding or whether they are applied in a binding way to the regulated public.
The DACA Memorandum, for instance, does not seem to require an immigration official to take a particular action. It instead lists several criteria that "should be satisfied before an individual is considered for an exercise of prosecutorial discretion," and it underscores that each candidate for deferred action should be evaluated "on an individual basis." (15) Rather than explicitly commanding a particular result, the guidance articulates relevant considerations for the conduct of immigration enforcement. The DAPA Memorandum likewise provides for a process "similar to DACA, for exercising prosecutorial discretion... on a case-by-case basis." (16) The Fifth Circuit nonetheless held that the DAPA guidance was likely unlawful because it was "binding as a practical matter." (17) Likewise, DACA and the Dear Colleague letters on sexual harassment and transgender rights have been rescinded by the Trump Administration in part on the grounds that they were procedurally suspect or invalid. (18) Institutions and persons who benefited from or relied upon DACA have successfully challenged the Trump Administration's rescission of the guidance as itself unlawful, on the grounds that the relevant agencies have failed to offer a well-reasoned explanation for the rescission. (19)
This struggle over guidance on social inclusion is primarily a political battle over the meaning of civil rights and the boundaries of the American political community. But it also concerns the contested meaning and boundaries of law itself in the administrative state. Although guidance is a "nonlegislative" form of agency action (20) that "lack[s] power to control," (21) it is nonetheless a land of law. Administrative law scholars have long recognized the significance of the "internal law" of administration--the set of rules and standards that agencies use to limit or shape their own discretion, to notify private parties of the agency's official policy position, and to structure their internal organization. (22) Some scholars argue that such nonbinding documents are crucial bulwarks of the rule of law in the administrative state: they concretize abstract statutory commands and conferrals of power, and they regularize the discretionary application of statutory requirements. (23) Where agencies possess vast statutory authority and time constraints preclude legislative rulemaking or formal adjudication on every contested question, guidance documents can help ensure "equal treatment" according to general, publicly available norms. (24)
Other commentators, however, worry that agencies use guidance to circumvent the rulemaking process, thus coercing the public to conform to administrative policies that have not been vetted by public comment, exhaustively justified in a regulatory preamble, or subjected to pre-enforcement review. Most famously, Robert A. Anthony asserted that although "nonlegislative rules by definition cannot legally bind, agencies often inappropriately use them with the intent or effect of imposing a practical binding norm upon the regulated or benefited public." (25) Philip Hamburger has gone so far as to claim that agencies frequently use guidance as a means of "extortion," imposing "under-the-table threats of an executive or judicial nature." (26) Guidance is therefore characterized either as essential to the rule of law or as its anathema.
The legal status and appropriate use of guidance thus remain "baffling" problems "enshrouded in considerable smog." (27) The basic quandary is that courts generally treat guidance as valid if it is not binding, (28) yet guidance only seems to achieve its rule-of-law objectives--namely, notice and consistent treatment--if it does bind administrative behavior. (29) Unless officials are meaningfully constrained to follow the guidance, it will not apprise the public of the agency's position or guarantee uniformity and regularity in the handling of particular cases. But if guidance constrains agency behavior in this way, the public may feel coerced to conform to its terms in order to avoid predicable official sanctions. How can this conundrum be unraveled?
Some decisions from the U.S. Court of Appeals for the D.C. Circuit follow Anthony in maintaining that guidance is impermissibly binding if "affected private parties are reasonably led to believe that failure to conform will bring adverse consequences." (30) That kind of coercion is likely to take hold where the guidance does not leave agency officials' enforcement discretion intact. (31) The Department of Justice under the Trump Administration has taken this line in instructing Department components not to use guidance documents to "effectively bind private parties" or to "coerc[e] persons or entities outside the federal government into taking any action or refraining from taking any action beyond what is required by the applicable statute or regulation." (32) However, other D.C. Circuit decisions focus on whether agency procedure and practice would allow a departure from the position stated in the guidance. (33) On this...