UCLA School of Law

Agency guidance is a crucial and hotly contested tool of US administrative law. Such nonbinding, soft law documents are exempt from the onerous ‘notice-and-comment’ requirements of the Administrative Procedure Act, which apply to the issuance of binding regulations. Guidance facilitates political accountability, administrative flexibility, and consistent enforcement. But it may at the same time coerce compliance, or under-enforce the law, without adequate procedural protection or substantive justification. These documents also impact private parties’ moral reasoning, insofar as they can clarify otherwise binding moral obligations. Finally, guidance can play a fraught role in mediating intense political disputes, as it stakes out uncertain and contestable official stances, which may deepen existing social fissures and legitimation deficits.