Ming Hsu Chen

Volume 71, Issue 5, 1127-1142

The use of guidance documents in administrative law has long been controversial and considered to be one of the most challenging aspects of administrative law. When an agency uses a guidance document to change or make policy, it need not provide notice to the public or allow comment on the new rule; this makes changes easier, faster, and less subject to judicial review. Under the Obama Administration, guidance documents were used to implement policy shifts in many areas of administrative law, including civil rights issues such as transgender inclusion and campus sexual harassment, and immigration law issues such as deferred action. The current administration has rolled back many of these policies and advanced its own positions. This Essay will focus on recent developments in the use of guidance documents with an eye toward analyzing the implications of the Trump Administration’s executive order on guidance. It begins by summarizing the issue of policymaking through guidance, highlighting the impact of recent issuances that stiffen procedural requirements for “novel legal and policy issues.” It illustrates the stakes of these changes using recent controversies in immigration law and civil rights and reflects on their significance for the administrative law of guidance.