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Agencies main powers
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rule-making and adjudication
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Reasons for agencies
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Lack of Time
Expertise
Responsiveness to Changes
Lack of political will
Expertise
Responsiveness to Changes
Lack of political will
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Types of rulemaking
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Legislative rules and non-legislative rules
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Legislative rules
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have full force and effect of law, receive greater deference from courts an require more procedures
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Non-Legislative rules
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are not binding, receive less deference from courts, and require fewer procedures
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Administrative Procedures Act
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...
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Agencies are created by
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statutes
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When Congress, in a statute, authorizes an agency to makes rules that have the force of law and the agency adopts rules pursuant to that statutory authority, following the required administrative procedures (generally known as "notice and comment" rulemaking), the rules are
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legislative rules
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Non-legislative rules are issued in a variety of forms, including
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interpretative rules, policy statements, guidance documents, and enforcement manual
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legislative rules have two distinct advantages over non-legislative rules
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First, legislative rules have the force of law and agencies do not have to independently justify the basis for the rule when applying it to a specific factual setting.
courts will accord an agency more deference when reviewing the statutory interpretation adopted by the agency in a legislative rule than in a non-legislative rule
courts will accord an agency more deference when reviewing the statutory interpretation adopted by the agency in a legislative rule than in a non-legislative rule
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The procedures that agencies must follow when adopting rules or making decisions through adjudication are set by the
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APA.... Administrative Procedures Act
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The APA requires agencies to follow either
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formal rulemaking procedures or informal ("notice and comment") rulemaking procedures when adopting legislative rules,
exempts non-legislative rules from those procedural requirements
exempts non-legislative rules from those procedural requirements
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Formal rulemaking involves what type of hearing?
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a trial-type hearing before an administrative law judge, who makes a decision based on a record presented at the hearing.
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An agency must adopt rules through formal rulemaking only when
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he statute that authorizes the agency to make rules requires the agency to make the rules "on the record after opportunity for an agency hearing.
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Courts rarely interpret statutes to require
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formal rulemaking
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If an agency is not required to follow formal rulemaking procedures when adopting legislative rules, the agency must follow
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the APA's informal rulemaking procedures
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For informal rulemaking, the APA requires agencies to begin the process by
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publishing a notice of proposed rulemaking in the Federal Register, including the terms or substance of the proposed rule, a reference to the legal authority for the rule, and a statement of the time, place and nature of public rulemaking proceedings.
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When is an agency required to give interested persons an opportunity to comment on the proposed rule
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during informal rulemaking
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(Informal Rulemaking) When the agency has finalized the rule in light of the public input, the APA requires the agency to provide a
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concise general statement of [the] .. basis and purpose" of the rules, which the agency publishes with the final rule in the Federal Register
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While the APA establishes procedures for legislative (or substantive) rules, it does not require agencies to follow any specific procedures when adopting
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non-legislative rules
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The APA requirements for formal adjudication are similar to the requirements for formal rulemaking and include a
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trial-type hearing before an administrative law judge, who makes a decision based on a record presented at the hearing.
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informal adjudication...... If an agency is denying a written application, petition or request of a person, the statute requires the agency to give the person
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"prompt notice" and "a brief statement of the grounds for denial.
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Agencies must follow the APA's formal adjudication procedures whenever a statute requires the agency to
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make a decision in adjudication "on the record after opportunity for an agency hearing."
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In order to challenge an agency action in court, a litigant must generally demonstrate, at a minimum, that:
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(1) the action is reviewable; (2) the court has jurisdiction to hear the litigant's challenge and grant the requested relief; (3) the government has waived sovereign immunity and authorized the suit; and (4) the litigant has standing to sue.
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courts prefer that agencies use _______________ for adopting significant policies
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rulemaking.... due principally to the flexibility, openness, fairness, informality and potential for comprehensive solutions that rulemaking is thought to make possible.
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