How Binding Is Administrative Guidance? An Empirical Study of Guidance, Rules, and the Courts Telling Them Apart

Guidance documents are a main pillar of the modern administrative state. While federal agencies issue thousands of rules every year through notice-and-comment rulemaking, they issue even more guidance documents in various forms. There is, however, an ongoing and fierce dispute over agencies' ability to create binding obligations through guidance without the notice-and-comment rulemaking procedures stipulated by the Administrative Procedure Act. The binding norm doctrine purports to prevent agencies from creating binding obligations through guidance, and often focuses on documents' choice of wording. But to what extent do guidance documents use binding language, and how do courts understand them? Despite the widespread interest in these questions, however, there has been a surprising lack of empirical studies tackling them. This article begins to bridge this gap and presents an analysis based on a novel dataset compiled from an online database of agency guidance, which encompasses nearly 70,000 documents issued by three key federal agencies from 1970 to 2022. Using computational text analysis, it investigates the language of guidance documents to assess their potential bindingness. It identifies specific linguistic cues that courts have used to interpret documents as binding or non-binding and applies these criteria across the dataset. The findings indicate a significant rise in the quantity and the assertiveness of language in guidance documents over the decades and show their near parity with legislative rules in terms of their binding effect, suggesting that guidance has indeed become a main bulwark of administrative policymaking. Moreover, the analysis explores judicial reviews of guidance documents, finding no substantial differences between documents that were set aside as too binding and others that were upheld, suggesting that the application of the binding norm doctrine fails to create a systematic and consistent framework for administrative agencies and regulated entities. In response to these findings, the article proposes a shift from the current focus on the close textual reading of documents to a procedural label test, which assesses only whether a rule has undergone the required procedural steps. This approach aims to simplify the legal assessment of guidance documents and provide a more stable foundation for administrative action.