Washington Law Review

Comment

The Substantial Impact Approach: Reviewing Policy Statements in Light of APA Finality

March 17, 2020 | 95 Wash. L. Rev. 500

Abstract: Federal agencies engage in a wide range of non-binding action, issuing guidance documents such as policy statements and interpretive rules. Although these guidance documents may have a substantial impact on industries or members of the public, courts often refuse to review their substance. The Administrative Procedure Act requires agency action to be “final” before courts can review it. The D.C. Circuit and the Ninth Circuit have taken conflicting and often messy approaches in determining whether interpretive rules and policy statements are final and thus reviewable. This Comment proposes a new approach: the substantial impact approach. Under this approach—repurposed from a rejected test for procedural sufficiency of guidance documents—courts could review a guidance document that has a substantial impact on affected parties. This Comment analyzes the 2017 Department of Homeland Security memorandum rescinding Deferred Action for Childhood Arrivals, highlighting it as an example of a subset of policy statements that should be reviewable under the proposed substantial impact approach.

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