Re-Inventing Rulemaking

Abstract

Bob Anthony and Tom McGarity both maki a number of important, perceptive points, and I find myself in substantial agreement with each of them. I have only two principal disagreements with Bob Anthony. First, I believe that a court should not go behind the objective terms of a statement of agency policy to speculate about whether the statement was "really intended" to bind the public. If by its terms an agency's general statement of agency policy is limited to establishing general policies and explicitly states that the policies must be justified de novo in subsequent applications where the policies are challenged, then a court should not invalidate the policies-on the grounds that, contrary to what the agency's statement says it is, the court thinks that it is "really" or "practically" a "non-rule rule" made without benefit of proper rulemaking procedures. Second, I believe that courts should not attempt to force all agency policymaking into the mold of notice-and-comment rulemaking. Notice-and-comment does not always provide genuine public participation in legislative rulemaking; it is useful primarily as a record-making device and is generally employed when a rule is in near-final form.