How Much Procedure Is Needed for Agencies to Change 'Novel' Regulatory Policies

16 Pages Posted: 16 Mar 2020 Last revised: 2 Jun 2020

See all articles by Ming Hsu Chen

Ming Hsu Chen

University of Colorado Law School; Center for the Study of Law & Society; University of Colorado, Boulder - Political Science

Date Written: February 21, 2020

Abstract

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 and 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 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.

Suggested Citation

Chen, Ming Hsu, How Much Procedure Is Needed for Agencies to Change 'Novel' Regulatory Policies (February 21, 2020). Hastings Law Journal, Vol. 71, 2020, U of Colorado Law Legal Studies Research Paper No. 20-9, Available at SSRN: https://ssrn.com/abstract=3547110

Ming Hsu Chen (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

Center for the Study of Law & Society ( email )

2240 Piedmont Avenue
Berkeley, CA 94720
United States

University of Colorado, Boulder - Political Science ( email )

1070 Edinboro Drive
Boulder, CO 80309
United States

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