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- Title
Agency Control and Internally Binding Norms.
- Authors
NABAVI-NOORI, ALEXANDER
- Abstract
Lower courts have consistently held that agencies may not issue guidance that purports to bind the public. In their parlance, guidance cannot create a "binding norm" on regulated parties. The courts have been far less clear, however, on the extent to which guidance can appropriately bind the issuing agency or its staff. Courts have approached this issue in widely divergent ways, and some have held that guidance cannot even bind low-level agency officials. In the shadow of this uncertainty, agencies continue to use guidance as an important tool for internal administration. Guidance facilitates bureaucratic supervision of frontline officials, enables agency administrators to exercise the agency's discretion transparently, and communicates the agency's interpretations of the law to both internal and external actors. To serve these functions, guidance must impose some binding norms on agency staff. Despite the importance of guidance to the internal operations of the administrative state, little empirical work exists to shed light on how agencies design and deploy these policies and whether their practices comport with the assumptions of the binding-norm doctrine. To fill this gap, this Note conducts a comparative assessment of the guidance practices at three agencies: the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, and U.S. Citizenship and Immigration Services. Drawing on employee manuals, briefings in response to litigation, and interviews with agency insiders, I evaluate how these agencies use guidance to manage the discretion and work of agency staff. I find that officials at each agency believe that guidance must necessarily be capable of binding internal agency actors, particularly frontline officials, to effectuate consistent and transparent internal administration. These findings reveal a disconnect between the actual practices at these agencies and recent judicial decisions invalidating agency guidance. To resolve this discrepancy, I propose a new contextual approach to judicial review of guidance that encourages courts to distinguish between the internal and external binding effects of guidance. This approach weighs the underlying authority of the agency to act absent the guidance, the power of the agency generally to create indirect binding effects on regulated parties, the agency's internal procedures for contesting guidance, and the audience for the guidance to determine whether the guidance is appropriate or simply a substitute for a legislative rule.
- Subjects
AFFIRMATIVE action programs; SOCIAL norms; EMPIRICAL research; UNCERTAINTY; DECISION making
- Publication
Yale Law Journal, 2022, Vol 131, Issue 4, p1278
- ISSN
0044-0094
- Publication type
Article