In my last post, I noted the problem of nonlegislative rules – rules, such as guidance documents, announced by administrative agencies that are not required to go through the procedural check of notice and comment and are usually not subject to judicial review. These nonlegislative rules are greatly favored by administrative agencies because these rules allow the agencies to circumvent the ordinary checks on them. Good governance requires that this loophole be closed.
The key feature about nonlegislative rules is that they are supposed to be non-binding. In contrast to a legislative rule, no one is required to follow a nonlegislative rule. In essence, they are simply supposed to provide information to the public about how the agency plans to interpret the law or exercise its policy discretion. This is what is said to justify not following notice and comment and not being subject to judicial review.
The problem is that nonlegislative rules often have a real effect as a matter of practice. For example, the guidance by the Department of Education announcing that the preponderance of the evidence standard should be used for sexual assault cases came in a nonbinding guidance, but of course many colleges have been pressured into adopting it for fear that the Department might otherwise take action against it, risking the federal funds it receives and the reputational hit it would take for being seen as violating Title IX.
But entirely forbidding nonlegislative rules is not a desirable solution, because these rules can often provide useful information to the public. So what should be done?