Regulatory History and Judicial Review lawreview - Minnesota Law Review
By TODD PHILLIPS & ANTHONY MOFFA. Full Text. The Administrative Procedure Act (APA) requires federal agencies to simply "incorporate in the rules adopted a concise general statement of their basis and purpose" after they receive comments from the public, and the Supreme Court ruled in Overton Park that courts are to adjudicate whether rules are lawreview - Minnesota Law Review
By TODD PHILLIPS & ANTHONY MOFFA. Full Text . The Administrative Procedure Act (APA) requires federal agencies to simply “incorporate in the rules adopted a concise general statement of their basis and purpose” after they receive comments from the public, and the Supreme Court ruled in Overton Park that courts are to adjudicate whether rules are arbitrary and capricious based on agencies’ contemporaneous rationales. Judge-created doctrines incentivize agencies to rely on these “concise” statements to elucidate their rationales, and, as a result, rulemaking preambles have ballooned in size as agencies seek to insulate themselves from critical courts. This Article contends that although the APA’s statutory requirement is in tension with this “hard look review” jurisprudence, that need not be the case; the latter can and should accommodate the former. It explains how agencies may supplement their rules’ preambles with memoranda, emails, and even affidavits to reveal their contemporaneous rationales to the courts. This Article concludes by arguing that doing so will not only ensure compliance with congressional intent but also satisfy the needs of courts and provide efficiencies for agencies. Tweet Share
Executive Summary
The article analyzes the tension between the Administrative Procedure Act's requirement for a concise general statement of basis and purpose in rulemaking and the judicial review principle of 'hard look review'. The authors argue that agencies can supplement their rules' preambles with additional documentation to reveal their contemporaneous rationales, ensuring compliance with congressional intent and satisfying the needs of courts. This approach can provide efficiencies for agencies and promote more effective judicial review. The article offers a nuanced exploration of the regulatory history and judicial review of administrative rulemaking, with implications for the development of administrative law.
Key Points
- ▸ The APA requires a concise general statement of basis and purpose in rulemaking
- ▸ Judge-created doctrines incentivize agencies to rely on 'concise' statements to elucidate their rationales
- ▸ Agencies can supplement their rules' preambles with additional documentation to reveal their contemporaneous rationales
Merits
Improved Transparency
The proposed approach can enhance the transparency of agency decision-making by providing more detailed and contemporaneous rationales for rulemaking
Demerits
Increased Administrative Burden
The use of additional documentation to supplement rulemaking preambles may impose significant administrative burdens on agencies, potentially undermining the efficiency of the rulemaking process
Expert Commentary
The article offers a thoughtful and well-reasoned analysis of the tension between the APA's concise statement requirement and the principle of 'hard look review'. The authors' proposal to supplement rulemaking preambles with additional documentation has the potential to enhance the transparency and effectiveness of agency decision-making, while also promoting more effective judicial review. However, the approach may also impose significant administrative burdens on agencies, highlighting the need for careful consideration of the potential implications and challenges of implementation.
Recommendations
- ✓ Agencies should consider revising their rulemaking procedures to incorporate additional documentation, such as memoranda and affidavits, to supplement their rules' preambles
- ✓ Courts should be mindful of the potential benefits and challenges of the proposed approach, and consider the implications for judicial review and agency accountability
