AG Sessions Speaks. No More Guidance. Make It So.

Last week, Attorney General Sessions sent a memorandum prohibiting the use of guidance in place of notice and comment rulemaking "when purporting to create rights or obligations binding on members of the public or the agency."  Who can doubt that Scott Pruitt is jealously thinking that he should have been the first on this one?

The debate between guidance and regulation has long been a concern of mine, and I am generally supportive of the views expressed by the AG in the memorandum.  When a guidance document "reads like a ukase," to quote from one of my favorite cases concerning the guidance/regulation debate, and when an agency implements guidance documents as though they are regulations, then something has gone seriously wrong.