Legislative vs. interpretive rules: the basic difference
Government agencies write enormous numbers of rules, but not all of them are law. A legislative rule (also called a substantive rule) is issued under power that a statute delegated to the agency, and it binds the public much like the statute itself. An interpretive rule only explains how the agency reads an existing statute or regulation, and a policy statement tells the public how the agency plans to use its discretion. Those two are often grouped as guidance documents.
The difference matters in two ways. First, procedure: under the Administrative Procedure Act, 5 U.S.C. § 553, legislative rules generally require public notice and an opportunity to comment, while interpretive rules and policy statements are exempt. Second, effect: a legislative rule can be enforced against you, while guidance by itself can't create new legal duties. The background idea of delegation is covered in the nondelegation doctrine.
- Legislative rule
- Binding; notice and comment
- Interpretive rule
- Explains the law; no notice required
- Policy statement
- Signals how discretion will be used
- Korean terms
- 법규명령 vs. 행정규칙
The label on a document doesn't decide what it is. Courts in both countries look past the name to what the rule actually does.
How U.S. courts tell them apart
American courts ask whether the rule has "the force and effect of law." Signs of a legislative rule include an agency invoking its delegated rulemaking power, publishing the rule in the Code of Federal Regulations, or creating duties that didn't exist before. An agency can't avoid notice and comment by calling a binding rule "guidance."
In Perez v. Mortgage Bankers Association, 575 U.S. 92 (2015), the Supreme Court held that an agency may issue or change an interpretive rule without notice and comment, rejecting a lower-court doctrine that had required it when an agency changed a settled interpretation. The flip side is that interpretive rules don't bind courts.
How much weight courts give an agency's reading has shifted. Kisor v. Wilkie, 588 U.S. 558 (2019), kept Auer deference to an agency's reading of its own ambiguous regulation but narrowed it, and Loper Bright Enterprises v. Raimondo (2024) ended Chevron deference to agency readings of statutes. Courts now use ordinary tools of statutory interpretation and treat agency views as persuasive at most.
- Chrysler Corp. v. Brown (1979)
- Only rules with the force of law bind like statutes
- Perez (2015)
- Interpretive rules can be changed without notice and comment
- Kisor (2019)
- Auer deference kept but narrowed
- Loper Bright (2024)
- Chevron deference overruled
Korea's line: regulations and administrative rules
Korean administrative law divides administrative legislation into 법규명령 (regulations) and 행정규칙 (administrative rules). Regulations are presidential decrees, prime ministerial ordinances and ministerial ordinances issued under Constitution arts. 75 and 95; they bind citizens and courts. Administrative rules are directives, instructions, notices and guidelines that a superior agency issues to subordinate offices; they need no statutory basis but, as a rule, don't bind citizens or courts.
Korean courts, like American ones, look at substance over form. The Supreme Court has treated sanction standards in a ministerial ordinance as internal guidelines that don't bind courts, while treating the same kind of standards in a presidential decree as binding regulations, as in Decision 97Nu15418 (1997). A short Korean paper on Administrative Rules in Korea and Their Legal Effect: Internal Guidelines, Rules Supplementing Statutes, and Key Supreme Court Cases reviews these cases and the competing theories.
Rules that supplement statutes
Korea's main exception is the administrative rule that supplements a statute (법령보충적 행정규칙). When a statute or decree delegates specific details to an agency notice, and the agency issues that notice, it combines with the parent law and binds the public. The Supreme Court recognized this for a National Tax Service directive filling in an income tax decree, and the Constitutional Court treats such notices as reviewable in constitutional complaints. The Framework Act on Administrative Regulations and the Framework Act on Public Administration (2021) both acknowledge this form.
Purely internal rules aren't meaningless either. When an agency applies a discretionary guideline consistently, the equality principle can bind it to keep doing so, a doctrine called self-binding of the administration. That gives guidance an indirect external effect, similar to how American courts expect agencies to explain departures from past practice.
| United States | Korea | |
|---|---|---|
| Binding rules | Legislative rules (notice and comment) | Regulations; supplementing notices |
| Non-binding | Interpretive rules, policy statements | Directives, guidelines |
| Form vs. substance | Substance decides | Substance, plus decree/ordinance split |
| Indirect effect | Duty to explain changes | Self-binding via equality |
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Criticism and debate
Critics in both countries worry about "regulation by guidance." Agencies can steer behavior through documents that skip public comment and are hard to challenge in court, because they aren't formally binding. Businesses often follow guidance anyway to avoid enforcement risk, so the practical effect can be close to law.
Defenders say guidance gives the public useful notice of how agencies read complex rules and allows quick updates, and that forcing every explanation through full rulemaking would make agencies say less, not more. Korea's debate focuses on whether the decree-versus-ordinance distinction makes sense and on the growing number of notices that fill in statutes, which judicial review reaches only indirectly.
Guidance is cheap to issue and costly to ignore. That gap is why both legal systems keep testing what a rule really does.
Using this topic in study and assignments
When you face a rule in a problem, write down three things before anything else: the form of the rule (decree, ordinance, notice, guidance letter), the statute it relies on, and what it actually changes for the public. Then ask whether the statute delegated that content specifically. If it did, and the agency followed the required procedure, treat the rule as binding. If not, treat it as internal guidance and check whether equality or reliance principles still give it indirect force. Finish by asking how a court would review the resulting decision.
- What is the difference between legislative and interpretive rules?
- Legislative rules are issued under delegated power and bind the public; interpretive rules only explain how an agency reads existing law.
- Do interpretive rules need notice and comment?
- No. The APA exempts them, and Perez v. Mortgage Bankers Association confirmed agencies can change them without notice and comment.
- Are Korean agency notices binding?
- Usually not, but a notice that fills in details a statute delegated combines with that statute and binds the public.
References and official sources
- 5 U.S.C. § 553. Cornell LII
- Perez v. Mortgage Bankers Ass'n, 575 U.S. 92 (2015). Justia
- Interpretive rule, Wex. Cornell LII
- 행정기본법. 국가법령정보센터
- 행정규제기본법. 국가법령정보센터