The role of guidances in modern administrative procedure: The case for de novo review

Abstract

This article examines the rise of the administrative guidance under the APA. Guidances supply information so private parties can organize their behavior in accordance with law, but also allow agencies, without notice and comment, to indiscriminately expand their power. Separating useful from dangerous guidances requires allowing review of all guidances de novo as questions of law, without Chevron and Skidmore deference, by any interested party, even for nonfinal agency actions. Private selection effects will limit challenges to dangerous guidances without undermining those guidances that reduce uncertainty without improperly expanding the scope of agency power.