The Claims of Official Reason: Administrative Guidance on Social Inclusion

94 Pages Posted: 2 Sep 2018 Last revised: 15 May 2019

Date Written: August 13, 2018

Abstract

This Article examines the legal validity and effect of recent administrative actions concerning civil rights and social inclusion. Agencies under the Obama Administration issued “guidance” concerning sexual assault and harassment on college campuses, transgender rights, the use of arrest and conviction records in employment decisions, and deferral of deportation proceedings against undocumented immigrants. These actions have either been set aside by circuit courts or rescinded under the Trump Administration, in part on the grounds that they were issued without notice-and-comment rulemaking. Nonetheless, two district courts have blocked the Trump Administration’s rescission of the deferred action program because the government failed to take into account the “serious reliance interests” the program had generated. I explore these controversies over guidance on social inclusion in order to address some of the most difficult and long-disputed questions of administrative law: what is the appropriate scope of the “guidance exception” to notice-and-comment rulemaking, and what kinds of legal effects, if any, can such guidance generate? Drawing on the philosophy of law to interpret the case law, I argue that guidance can provide a privileged reason for an agency to act, but cannot categorically mandate or prohibit any course of public or private conduct. I show how such non-binding actions can nonetheless generate legally cognizable interests when individuals and institutions rely on the guidance to make plans and investments, or to see their status or the harms they suffer recognized. These reliance interests need to be taken into account if the policy is to be rescinded. My argument has concrete consequences for the staying power of the policies federal agencies put in place during the Obama Administration. More broadly, it sheds light on problems of internal administrative procedure and judicial review of administrative action, as well as fundamental issues in jurisprudence concerning “the force and effect of law.”

Keywords: administrative law, philosophy of law, legal theory, civil rights law, sex discrimination, deferred action

JEL Classification: K23

Suggested Citation

Emerson, Blake, The Claims of Official Reason: Administrative Guidance on Social Inclusion (August 13, 2018). Yale Law Journal, Forthcoming; UCLA School of Law, Public Law Research Paper No. 18-36. Available at SSRN: https://ssrn.com/abstract=3230292

Blake Emerson (Contact Author)

UCLA School of Law ( email )

385 Charles E. Young Drive East
1242 Law Building
Los Angeles, CA 90095
United States

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