David L. Franklin

90 Texas L. Rev. See Also 111

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Professor Franklin responds to Professor Seidenfeld’s argument in favor of substantive review of guidance documents by raising questions as to whether substantive review is a workable alternative.  Professor Franklin argues that a concern with consistency does not justify giving up the enterprise of procedural review, arguing that Professor Seidentfeld’s argument about the irrelevance of procedural invalidation of guidance documents is overstated.  Next, Professor Franklin acknowledges that he does not object to the proposal to loosen the doctrines of finality and ripeness but questions the effectiveness of the review process.  It is unclear to Professor Franklin how a court would determine which objections and alternatives must be addressed lest the guidance be declared substantively invalid.  As such, Professor Franklin views Professor Seidenfeld’s treatment of the interaction between substantive review and notice and comment as understated.

Professor Franklin concludes, “Preenforcement invalidation of guidance documents for failure to undergo notice and comment is, and should be, the exception rather than the rule.”  Due to the risk of agencies using guidance documents to change law without input from the public, “a persuasive case for abandoning procedural review has yet to be made.”