A Pragmatic Approach to Judicial Review of Informal Guidance Documents

Abstract:     
The Supreme Court has increasingly allowed agencies to act by informal means. This change has caused intense confusion (1) respecting how these guidance documents fit within the administrative regime and (2) respecting the proper level of deference these informal documents should receive. This article details the Supreme Court’s current Chevron-deference jurisprudence and examines the Court’s treatment of informal guidance documents in several recent decisions.

This Article argues that the Court should abandon its current approach to guidance documents and analyze and defer to administrative action pragmatically. Under this pragmatic approach, the reviewing court should analyze the character of the agency action; that is to say, the court should determine whether the agency is initiating, modifying, or reversing policy. The character of the agency action should then dictate the types of procedures the agency can employ. The reviewing court can then ensure that the agency used the proper procedures depending on the character of the agency action. The level of deference will then formulaically flow from the type of procedure used.

Number of Pages in PDF File: 32

Keywords: Chevron, Deference, Administrative, Administrative Law, Admin, Admin Law, Skidmore, Ossification, Mead, Informal, Agency, Action, Agency Action, Guidance Documents, Rulemaking

JEL Classification: K2, K20, K23

working papers series