How Much Effect Will This Have At Social Security?

     The President issued an executive order on Wednesday on "guidance documents" that  has slipped below the radar but which will certainly have effects at federal agencies including Social Security. Here's the relevant language:

... [I]t is the policy of the executive branch, to the extent consistent with applicable law, to require that agencies treat guidance documents as non-binding both in law and in practice, except as incorporated into a contract, take public input into account when appropriate in formulating guidance documents, and make guidance documents readily available to the public.  Agencies may impose legally binding requirements on the public only through regulations and on parties on a case-by-case basis through adjudications, and only after appropriate process, except as authorized by law or as incorporated into a contract. ...

 “Guidance document” means an agency statement of general applicability, intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issue, or an interpretation of a statute or regulation, but does not include the following:

(i)    rules promulgated pursuant to notice and comment under section 553 of title 5, United States Code, or similar statutory provisions;

(ii)   rules exempt from rulemaking requirements under section 553(a) of title 5, United States Code;

(iii)  rules of agency organization, procedure, or practice;

(iv)   decisions of agency adjudications under section 554 of title 5, United States Code, or similar statutory provisions;

(v)    internal guidance directed to the issuing agency or other agencies that is not intended to have substantial future effect on the behavior of regulated parties; or

(vi)   internal executive branch legal advice or legal opinions addressed to executive branch officials. ...

Within 120 days of the date on which OMB issues an implementing memorandum under section 6 of this order, each agency shall review its guidance documents and, consistent with applicable law, rescind those guidance documents that it determines should no longer be in effect. ...

     One can argue that the vast majority of Social Security's policy issuances describe how the agency is supposed to behave, not how the public is supposed to behave. Still, I can think of areas where the agency has sought to bind the public without adopting rules through the notice and comment procedure, such as:

• Material included in the notice of final rulemaking on regulation of attorney conduct that was not in the regulations themselves;
• Material in the agency's POMS manual on trusts;
• Materials in the HALLEX manual and Emergency Messages on the ways the Conn cases will proceed;
• Materials in HALLEX and POMS on attorney fees.