Can an Intelligible Distinction Between Legislative Rules and Guidance be Articulated?

The difference between a legislative rule, i.e., a rule that creates binding obligations with legal consequences for non-compliance, and an interpretative rule, i.e., a rule that interprets but does not itself legislate, is an important one. Among other things, agencies must typically give public notice of the former and allow the public an opportunity to comment before issuing them in the final form; not so of the latter. But in application the distinction is sometimes difficult to discern, especially where an agency issues "guidance" that it portrays as "interpretative" of existing authority but which, practically speaking, creates new binding norms. So-called "policy statements" sometimes give rise to the same mischief. This D.C. Bar program will address this topic and the not-entirely-consistent federal jurisprudence surrounding it.

Partner Dan Wolff will participate as a speaker.