Strategic or Sincere? Analyzing Agency Use of Guidance Documents
119 Yale L.J. 782 (2010).
This Note examines whether U.S. regulatory agencies frequently use guidance documents to issue policy decisions, avoiding the notice and comment process and other procedures normally required to issue rules. Legal scholars and recent presidential administrations both have debated this issue. This Note uses newly available data to conduct the first large-scale analysis of whether agencies actually abuse guidance. The Note investigates whether agency leaders: (1) issue guidance strategically; (2) use guidance to implement ideological policies; or (3) promulgate guidance on a large scale. The Note reports negative answers to these questions, suggesting that agencies do not frequently use guidance documents to avoid the rulemaking process.