Preambles As Guidance

84 George Washington Law Review 1252 (2016)

42 Pages Posted: 14 Oct 2016

See all articles by Kevin M. Stack

Kevin M. Stack

Vanderbilt University - Law School

Date Written: October 1, 2016

Abstract

Debates over administrative agencies’ reliance on guidance documents have largely neglected the most authoritative source of guidance about the meaning of agency regulations: their preambles. This Article examines and defends the guidance function of preambles. Preambles were designed not only to provide the agency’s official justification for the regulations they introduce, but also to offer guidance about the regulation’s meaning and application. Today, preambles include extensive guidance ranging from interpretive commentary to application examples. Based on the place of preamble guidance as part of the agency’s formal explanation of the regulation and the rigorous internal agency vetting which accompanies that formal role, this Article argues that preamble guidance has greater authority than other forms of guidance. That greater authority has important implications. Under current judicial doctrine, preamble guidance warrants greater deference than other forms of guidance. Preamble guidance’s superiority also grounds the agency’s obligation to act consistently with it — and to revise preamble guidance only in documents issued by the agency, as opposed to lower-level officials, with the same publicity as the original preamble. This obligation should be expressly adopted as a form of internal administrative law either by individual agencies or central executive branch regulators.

Keywords: Guidance, Interpretive Rule, Rulemaking, Judicial Review, Seminole Rock, Auer, Administrative Law, Internal Administrative Law

JEL Classification: K23

Suggested Citation

Stack, Kevin M., Preambles As Guidance (October 1, 2016). 84 George Washington Law Review 1252 (2016). Available at SSRN: https://ssrn.com/abstract=2851203

Kevin M. Stack (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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