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Open minds and harmless errors: Judicial review of postpromulgation notice and comment
Abstract
In 2012, the Government Accountability Office surprised many administrative law specialists by reporting that fully 35% of major rules and 44% of nonmajor rules issued by federal government agencies lacked prepromulgation notice and opportunity for public comment. For at least most of the major rules, however, the issuing agencies accepted comments from the public after issuing the rule, and in most of those cases the agencies followed up with new final rules, responding to comments and often making changes in response thereto. Agency rules that invert the procedural steps of notice-and-comment rulemaking in this way do not precisely comply with the Administrative Procedure Act, yet are arguably close enough that some courts have felt compelled to uphold them. Challenges to rules adopted in this manner have created a jurisprudential mess, as courts struggle to balance their duty to enforce the requirements of the Administrative Procedure Act with the practical realities of the modern administrative state. The sheer extent of the practice demonstrates the need for a more consistent judicial response. This Article explores the different approaches courts have taken to judicial review of postpromulgation notice and comment. The Article concludes that the allor- nothing models embraced by some courts are doctrinally and practically untenable, but that the middle-ground alternatives employed by other courts thus far do not ensure that postpromulgation notice and comment function as an equivalent substitute for prepromulgation procedures. Fortunately, the existing jurisprudential muddle is not so rigidly fixed as to require Congress, or even necessarily the Supreme Court, to resolve it. The Article proposes a solution to the middle-ground problem, first by reviewing the doctrinal theory surrounding agency rulemaking and then by articulating a set of factors for courts to employ in evaluating postpromulgation notice and comment case by case.
Soft law arrangements are increasingly preferred over international agreements in international economic relations. Despite its somewhat fluid nature, soft law’s advantages—inter alia increased flexibility, pragmatism and less burdensome implementation by contracting parties—have given it an edge over judicialized legal commitments. The textbook example for a (so far) successful use of soft law are G-20/FSB standards that define the post-GFC international financial regulatory environment. However, soft law’s seemingly lighter touch can be treacherous, especially when used in bilateral relationships between unequal partners, such as the ones between global or regional hegemonic powers, on one hand, and small, possibly struggling partners, on the other hand. China’s Belt and Road Initiative (BRI, also called OBOR) illustrates some of the downsides of soft law in that context. Many of the reasons for the diminishing attractiveness of international agreements are to be found in peculiar domestic constitutional law situations. Some of the reasons, however, seem attributable to the well-intentioned ambition of international lawyers who may have to accept that a less than perfect international legal mechanism may be preferable to a non-existent or suspended legal mechanism. In light of the many global issues that need fast and consensual solutions, such as climate change, the use of soft law will probably continue to increase.
El presente trabajo analiza algunas de las cuestiones más problemáticas y relevantes, tanto desde un punto de vista teórico como práctico, que en la actualidad plantea la regulación del procedimiento de elaboración de las normas reglamentarias: (i) la de los fines que debería perseguir esta regulación; (ii) la inadecuación de este procedimiento para elaborar ciertas disposiciones administrativas atípicas; (iii) la inadecuación de las estructuras organizativas actualmente encargadas de llevar a cabo las actividades en las que consiste dicho procedimiento; (iv) la evaluación ex post de los reglamentos; y (v) las consecuencias jurídicas derivadas de sus vicios de procedimiento y su control judicial.
The Treasury Department and the Internal Revenue Service have a strange relationship with Administrative Procedure Act notice-and-comment rulemaking procedures. Treasury acknowledges the general applicability of APA procedural requirements when it promulgates regulations interpreting the Internal Revenue Code. Treasury also maintains that most Treasury regulations are exempt from the APA's public notice and comment requirements. Nevertheless, Treasury purports to utilize those same procedures anyway in promulgating most Treasury regulations. This Article documents a study of 232 separate Treasury regulation projects for which Treasury published Treasury Decisions and notices of proposed rulemaking in the Federal Register between January 1, 2003, and December 31, 2005. In connection with this study, this Article compares Treasury's actual practices and exemption claims with current doctrinal trends in courts evaluating compliance with APA requirements across administrative agencies. The Article documents the study's finding that, in 40.9% of the projects studied, Treasury failed to follow APA notice and comment requirements. The Article also concludes that, as interpreted by the courts, established exceptions from those requirements generally do not apply to excuse this noncompliance. Consequently, among other implications, many Treasury regulations, including some of Treasury's most complex and controversial rulemaking efforts, are susceptible to legal challenge for failure to adhere to APA rulemaking requirements.