abstract. Under the Obama Administration, agencies issued guidance concerning sexual assault and harassment on college campuses, transgender rights, the use of arrest and conviction records in employment decisions, and deferral of deportation proceedings against undocumented immigrants. These actions have been either set aside by circuit courts or rescinded under the Trump Administration, in part on the grounds that they were issued without notice-and-comment rulemaking. Nonetheless, courts have blocked the Trump Administration’s rescission of the deferred-action program because the government failed to consider the “serious reliance interests” the program had generated.

This Article examines the legal validity and effect of these recent administrative actions concerning civil rights and social inclusion. In doing so, it addresses some of the most difficult and disputed questions in administrative law: what is the appropriate scope of the “guidance exemption” from notice-and-comment rulemaking and what kinds of legal effects can guidance generate? Drawing on the philosophy of law, the Article argues that guidance can provide a privileged reason for agency action but cannot categorically mandate or prohibit any course of public or private conduct. Such nonbinding action can nonetheless generate legally cognizable interests when individuals and institutions rely on the guidance to make plans and investments, or to see their status or the harms they suffer recognized. These reliance interests must be taken into account if the policy is to be rescinded.

This argument has concrete consequences for the staying power of the policies federal agencies put in place during the Obama Administration. More broadly, it sheds light on problems of internal administrative procedure and judicial review of administrative action, as well as fundamental issues in jurisprudence concerning “the force and effect of law.”

author. Assistant Professor of Law, UCLA School of Law, and Special Counsel to the Administrative Conference of the United States. Contact: emerson@law.ucla.edu. The author would like to thank the following people for their feedback on drafts and conversations about the argument: Tom Adams, Alexandra Brodsky, Beth Colgan, Kristen Eichensehr, Timothy Endicott, Kenneth Graham, Mark Greenberg, Waheed Hussain, Jeff Kaplan, Máximo Langer, Ron Levin, Catherine Lhamon, Jerry Mashaw, Gillian Metzger, Jon Michaels, Jennifer Mnookin, Sophia Moreau, Ben Nyblade, Anne Joseph O’Connell, K-Sue Park, Nick Parrillo, Adam Perry, Celene Reynolds, Larry Sager, Jocelyn Samuels, Laura Schaefer, Andrew Sepielli, Alicia Solow-Niederman, Kevin Stack, Catherine Valcke, Adam Winkler, Moran Yahav, Steve Yeazell, and Noah Zatz. Thank you also to Jane Farrell, Catherine Gardner, and Laure Kohne for their research assistance, and to Bradley Polivka, Zoe Jacoby, and the staff of the Yale Law Journal for their editorial input. The views stated in this Article do not represent those of the Administrative Conference of the United States or the federal government.