Agency Guidance

aka

interpretative rules /

general statements of policy/ nonlegislative rules

Guidance comes in many forms

• Letters
• Pamphlets
• Manuals
• Blog posts

THIS IS THE LEGAL STICKING POINT

How can you tell whether an agency has issued a legislative rule or non-binding guidance?

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According

to the APA

Ask these questions:

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1) Does the statement have a present, binding effect?

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2) Does the statement leave the agency and its decisionmakers free to exercise discretion?

Hoctor v.

U.S. Dep’t of Agriculture

(7th Cir. 1996)

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Consider this perspective:

“Every government agency that enforces a less than crystalline statute must interpret the statute, and it does the public a favor if it announces the interpretation in advancement of enforcement… it would be no favor to the public to discourage [this]”

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The Court Differentiates

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Legislative rules

from

Interpretative rules

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Legislative rules require rulemaking processes

Why is this fence rule “arbitrary”?

Why 8 feet? What is this number “interpretating”?

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“The two feet by which Hoctor’s fence fell short could not have contained a groundhog, let alone a liger, since it was empty space”

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THE JUDICIAL SNARK

• “…with a lawyer’s ingenuity the Department’s counsel reminded us that if one of the Cats mauled a human, the Cat might get into serious trouble”
• “The memo justifies the 8-ft requirement as a means of protecting the animals from predators, though one might have supposed the Big Cats able to protect themselves against the native Indiana Fauna”
• “The Department’s counsel made the wonderful lawyer’s argument that the 8-ft rule is consistent with the regulation b/c a fence lower than 8-ft has zero structural strength between its height (here 6 ft) and the 8-ft minimum.”

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Even though the 8-ft rule is arbitrary,

There are thousands of animal dealers for whom this has very real consequences.

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MORE JUDICIAL SNARK

• “The Department’s lawyer speculated that if there had been notice and comment, the Department would have received thousands of comments. The greater the public interest in a rule, the greater reason to allow the public to participate in its formation.”
• “At argument the Department’s lawyer tried to loosen up the rule, implying that the Department might have bent if Hoctor had proposed to dig a moat or electrify his six-foot fence. But an agency’s lawyer is not authorized to amend its rules in order to make them more palatable for the reviewing court.”

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Texas v.

United States

(S.D. Texas 2015)

Hoctor focused on whether rule had a binding effect (first factor of rule) and this case focuses on whether agency discretion is restricted (second factor of rule).

2014 DAPA Memorandum to DHS: Why does the Judge say this memo does not allow for agency discretion?

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Also what Obama said at a speech?

“I just took an action to change the law…” “If you meet the criteria, you can come out of the shadows…”

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Some thoughts…

• DHS did NOT say that everyone who meets the criteria must be given deferred-action status. The agents were allowed to refrain from granting deferred action to anyone, for any reason, on a case-by-case basis.

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• The Judge issued an injunction based on a prediction about how the government would act, not based on how it actually acted. Hanen has no idea how DAPA would be administered.