admin law: chap 6

Why does Congress delegate rulemaking to agencies?

It lacks the time and technical expertise to write every detail (like parts per billion of arsenic in drinking water or Boeing 737 switch specs).

How does Congress delegate rulemaking to agencies?

It passes broad statutes with an intelligible principle and agencies fill in the details.

What is the legal force of a properly issued agency regulation?

Full binding force and effect of federal law, not polite advice.

How are legal force of a properly issues agency regulation backed/enforced?

Backed by heavy fines, loss of licenses, and even prison time

What is rulemaking?

The process by which an agency establishes law to implement or perform a statutory duty. The agency acts like a legislature (quasi-legislative) and produces a rule.

How does the REAL ID example show the role of rulemaking?

Congress passed one statute in 2005 after the 9/11 Commission, but DHS and TSA used about 20 years of rulemaking to write the details.

Rulemaking set

accepted documents, anti-counterfeiting features, the star marking, and deadline changes (such as COVID delays).

What are the REAL ID enforcement dates in the lecture?

January 2025 TSA final rule set May 7, 2025 as the start of card-based enforcement at airports.

REAL ID enforcement phases

Phased enforcement (warnings, graduated rollout) until 100 percent full enforcement on May 5, 2027.

What is the Federal Register?

Federal Register: daily publication of proposed and final rules, notices, and orders (started by the Federal Register Act of 1935).

CFR

Code of Federal Regulations, the codified permanent rules in 50 titles (added in 1937).

Federal Register and CFR are

connected (CFR is in the Fed Reg)

What did the instructor warn about Chapter 6?

It is notoriously difficult to follow. Keep section numbers straight and keep your notes organized, because mixing up numbers leads to wrong answers on a worksheet or exam.

What is a rule under APA § 551(4)?

The whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy, or describing agency organization, procedure, or practice.

Which APA subsections cover rulemaking and which cover adjudication?

• Rulemaking (a rule): § 551(4) and (5).

• Adjudication (an order): § 551(6) and (7).

How do rulemaking and adjudication differ?

Rulemaking is quasi-legislative, future-looking, and applies to broad classes or industries (all coal plants, all airline passengers).

Adjudication is quasi-judicial, looks backward at specific facts, and decides rights or penalties of specific parties (revoking pilot John Smith's license).

Rulemaking is

quasi-legislative, future-looking, and applies to broad classes or industries (all coal plants, all airline passengers).

Adjudication is

quasi-judicial, looks backward at specific facts, and decides rights or penalties of specific parties (revoking pilot John Smith's license).

What is Justice Holmes's definition of adjudication?

• A process that investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.

• Legislation looks to the future and changes existing conditions by making a new rule.

Londoner v. City and County of Denver (1908): facts

A city board assessed a special street paving tax on a handful of homeowners on one block based on individual property facts.

Londoner v. City and County of Denver (1908): holding

adjudication, so due process requires each homeowner an individual hearing.

Bi-Metallic Investment Co. v. State Board of Equalization (1915): facts

The state board raised property valuations 40 percent across all of Denver. A landowner demanded a personal hearing.

Holmes: no. A broad rule affecting everyone is rulemaking with no constitutional right to a personal hearing (otherwise no rule could ever be passed).

Bi-Metallic Investment Co. v. State Board of Equalization (1915): holding

Holmes: no. A broad rule affecting everyone is rulemaking with no constitutional right to a personal hearing (otherwise no rule could ever be passed).

Why does the rulemaking versus adjudication line matter?

Due process. Adjudication requires notice and an opportunity to be heard (Londoner). Rulemaking generally does not require a hearing (Bi-Metallic).

Can an agency impose a sanction through rulemaking alone?

No. A rule cannot itself sanction anyone. An adjudication to enforce the rule must occur before a person or company is sanctioned.

How does agency rule output compare with Congress's?

• Congress passes about 100 to 350 public laws a year.

• Agencies make about 4,500 rules a year, roughly 20 times as many.

How big is the Federal Register according to the lecture?

About 70,000 to 90,000 pages a year (the book says nearly 100,000 pages in 2016).

What did Trump's January 30, 2017 Executive Order on regulation require?

• For every one new regulation, at least two prior regulations must be identified for elimination.

• Total incremental cost of new regulations must be no greater than zero for fiscal year 2017 unless required by law or OMB approves.

What is midnight rulemaking?

Outgoing presidents of both parties ramp up rulemaking in their final months to leave a lasting policy imprint.

What are the three types of rules under the APA (outline)?

1. Legislative (substantive) rules,

2. non-legislative rules (interpretive rules and policy statements), and

3. procedural rules.

What is the book's two-type framing of rules?

Legislative and interpretive.

Legislative rules divide into

procedural and substantive.

What is a legislative (substantive) rule?

A rule using delegated power to create new rights and duties that bind the public, the agency, and the courts like a statute (EPA emissions cap, OSHA roof harness rule).

a legislative (substantive) rule require ?

Requires § 553 notice-and-comment unless an exemption applies.

What is an interpretive rule?

A rule explaining what the agency thinks an existing statute or regulation already means.

a interpretive rule creates

no new duty, is exempt from notice-and-comment, and lacks the force of law (courts give it great weight).

What is a general statement of policy?

An announcement of how the agency plans to use its enforcement discretion (for example, inspectors will focus on older cargo planes next year).

general statement of policy exemption

from notice-and-comment and not binding.

What happens if an agency labels a binding new rule as guidance to skip comment?

• Courts strike it down.

• The agency must prove you violated the underlying statute or legislative rule, not the guidance memo.

What is a procedural rule and why can it still matter?

A rule of agency organization, procedure, or practice (font size, online upload versus mailing).

procedural rule exemption

if it does not alter substantive rights. It can still include or exclude demographics (tech-savvy versus mail-based filers).

Does a delegation of authority carry the power to make procedural rules?

Yes. Authority to implement a mandate implicitly carries power to set procedures, and agencies are normally bound by their own procedural rules.

Must substantive rules rest on a statute and be reasonable?

Yes. Substantive rulemaking power must come from an enabling statute. The rule must rationally relate to it (strict scrutiny if it burdens a suspect class or fundamental right).

What is APA § 553?

The master procedural playbook for rulemaking, routing rules into formal, informal, hybrid, exempted, or negotiated tracks.

What does NLRB v. Wyman-Gordon say about the APA rulemaking provisions?

They were designed to assure fairness and mature consideration of rules of general application. Failure to comply generally invalidates the rule.

Give the APA section cheat sheet for rulemaking.

• § 553(a) subject-matter exemptions.

• § 553(b)(A) interpretive, policy, and procedural exemption.

• § 553(b)(B) good cause.

• § 553(c) informal notice-and-comment (and the trigger for formal rulemaking).

• § 553(d) 30 days before effective.

• §§ 556-557 formal hearing.

• § 706 judicial review.

When is formal rulemaking required?

Only when a statute requires rules to be made on the record after opportunity for an agency hearing (§ 553(c)). The APA alone never requires it.

What does formal rulemaking involve?

A trial-type hearing before an ALJ with sworn witnesses, cross-examination, exhibits, a closed record, and no ex parte communications (§§ 556-557). The decision needs findings and conclusions on all material issues of fact, law, or discretion.

Why is formal rulemaking criticized?

It is slow and costly. The FDA peanut butter case (87.5 or 90 percent peanuts) took about 12 years and produced nearly 8,000 pages of transcript.

United States v. Florida East Coast Railway (1973): facts?

A national boxcar shortage because railroads hoarded other railroads' cars due to a cheap per diem rental fee. The ICC set incentive per diem charges after collecting only written submissions (60 days) under a statute saying after hearing.

United States v. Florida East Coast Railway (1973): holding?

After hearing is not the same as on the record after opportunity for an agency hearing, so formal rulemaking was not required and written submissions sufficed. Unless Congress uses the magic words, agencies do not have to use formal rulemaking (the case essentially killed it).

What are the three steps of informal (notice-and-comment) rulemaking?

1. Notice of Proposed Rulemaking in the Federal Register.

2. Public comment period (usually 30 to 60 days, regulations.gov).

3. Final rule with a concise general statement of basis and purpose, published at least 30 days before it takes effect.

What must an NPRM contain?

Time, place, and nature of the proceeding, the legal authority, the proposed rule (or its terms or substance), and the underlying scientific data.

What must the statement of basis and purpose do?

Explain the agency's basic rationale and essential facts and respond to significant comments.

What is the logical outgrowth requirement?

The final rule may change after comments, but it must be a logical outgrowth of the proposal so no one is ambushed (a branch from a branch, not a new branch from the base of the tree).

What is the difference between a Notice of Proposed Rulemaking and an Advance Notice (ANPRM)?

• ANPRM comes earlier when the agency sees a problem but lacks information to draft a rule.

• The NPRM proposes the actual rule.

Define a major rule and an economically significant rule.

• Economically significant: annual effect on the economy of 100 million dollars or more.

• Major rules (economically significant or requiring a Regulatory Impact Analysis) wait 60 days for congressional review under the CRA.

What is hybrid rulemaking?

Notice-and-comment plus extra steps (oral hearing, cross-examination, ANPRM, disclosure of methodology, impact studies).

hybrid rulemaking is valid only if

required by Congress or the president, or adopted voluntarily by the agency.

Why did judges invent hybrid rulemaking before 1978?

Some D.C. Circuit judges thought basic notice-and-comment was too simple for large, complex scientific issues and ordered extra procedures.

Vermont Yankee v. NRDC (1978): facts?

The AEC ran notice-and-comment rulemaking on environmental impacts of nuclear fuel reprocessing and waste storage, even holding a voluntary oral hearing, but refused cross-examination of its scientists. The D.C. Circuit overturned the rule.

Vermont Yankee v. NRDC (1978): holding?

Unanimous. § 553 is the maximum (ceiling, not the floor) of procedures courts may impose. Agencies and Congress may add procedures, but judges may not invent them. Circumstances justifying court-imposed extras are extremely rare.

Name presidential executive orders that add rulemaking steps.

• Carter 12,044.

• Reagan 12,291 and 12,498.

• Clinton 12,866 (OIRA review, cost-benefit analysis).

• Bush 13,422.

Presidents can supplement but not reduce APA requirements.

Presidents can supplement but not

reduce APA requirements.

Which subjects are exempt under § 553(a)?

• Military or foreign affairs,

• agency management and personnel,

• public property,

• loans,

• grants,

• benefits, and

• contracts

What is the good cause exemption?

§ 553(b)(B): notice and comment are impracticable, unnecessary, or contrary to the public interest (FAA grounding an unsafe plane, fixing a typo).

The agency must explain it in the final rule.

What are direct final and interim final rules?

Direct final: published as final and takes effect unless someone objects within a set period (often 30 days).

Interim final: takes effect immediately with comments solicited afterward.

Direct final:

published as final and takes effect unless someone objects within a set period (often 30 days).

Interim final:

takes effect immediately with comments solicited afterward.

Which exemptions waive all rulemaking requirements and which waive only public participation?

Military, foreign affairs, and agency management waive all requirements. The others waive only public participation (the agency must still publish its final rule).

What is negotiated rulemaking (Reg-Neg)?

Under the Negotiated Rulemaking Act of 1990, up to about 25 representatives of industry, labor, environmental groups, and government meet with a mediator before drafting to negotiate a consensus rule. The draft then goes through standard notice-and-comment.

Is lobbying common in negotiated rulemaking?

No. Lobbying mostly occurs in Congress, agency comments and meetings, OIRA, and state governments. Disclosure laws make it rare in reg-neg.

What does FACA require?

• Whenever an advisory committee has at least one non-federal employee, FACA (1972) requires four sunshine rules.

• Formal charter expiring in two years unless renewed, fairly balanced membership, meetings announced in the Federal Register and open to the public, and public access to working papers and minutes.

Is ratemaking rulemaking or adjudication?

Under § 551(4), setting future rates is rulemaking even for a single utility. The Takings Clause requires rates to be just and reasonable (FPC v. Hope Natural Gas, 1944).

What does just and reasonable mean for rates?

High enough to cover operating costs and earn a fair return for investors, without gouging customers.

What did Mayo Foundation v. United States (2011) decide?

Unanimous (Roberts). Ended tax exceptionalism, so Treasury and IRS rules follow the same APA rulemaking and review standards as all agencies. It involved medical residents and Social Security payroll taxes.

What did CIC Services v. IRS (2021) decide?

The Anti-Injunction Act does not block a pre-enforcement APA challenge to an IRS reporting regulation backed by penalties.

What statute gives Treasury and the IRS general rulemaking authority?

Internal Revenue Code § 7805(a), authority to write all needful rules and regulations.

What are Congress's tools to control agency rulemaking?

Amend the enabling statute, appropriations riders that cut off funding to enforce a rule, joint resolutions of disapproval under the CRA, and its power to create or defund agencies.

INS v. Chadha (1983): holding?

A one-house legislative veto is unconstitutional. Binding legislative action must pass both houses (bicameralism) and be presented to the president (Article I, Section 7).

How does the Congressional Review Act (1996) work?

• Agencies send final rules to Congress and GAO. Congress has 60 legislative days to pass a fast-track joint resolution of disapproval (no Senate filibuster) that the president signs.

• If enacted, the rule is dead and the agency cannot reissue a substantially similar rule without new legislation.

How is the 60 legislative days different from the 60-day delay for major rules?

Major rules wait 60 days before taking effect. The CRA review window is 60 legislative days (not calendar days).

What is the super smackdown?

When two branches say no to an agency (any two of Congress, the president, and the Supreme Court), the agency loses.

FDA v. Brown & Williamson Tobacco (2000): facts?

For about 60 years the FDA said it lacked authority over tobacco. In 1996 it declared nicotine a drug and cigarettes drug-delivery devices and restricted ads and sales to minors. The rule drew over 700,000 comments.

FDA v. Brown & Williamson (2000): holding?

The FDA lacked authority. The tobacco rules were struck down (O'Connor).

What is Brown and Williamson's first rule?

• Read a statute as a coherent whole alongside later laws.

• FDCA would require banning unsafe products, but six tobacco statutes (1965 to 1992) assumed cigarettes stay legal.

What is the second rule of Brown & Williamson?

Major Questions Doctrine: courts will not assume Congress hid power of vast economic and political significance in a vague statute.

What is the elephants in mouseholes line?

Scalia in Whitman v. American Trucking (2001): Congress does not hide elephants in mouseholes.

What did Congress do about tobacco in 2009?

It passed the Family Smoking Prevention and Tobacco Control Act, giving the FDA tobacco authority but barring an outright ban on cigarettes.

Why does Brown and Williamson matter for separation of powers?

Agencies have quasi-legislative power, not true legislative power, and the Court enforces that barrier.

How does the president control rulemaking?

From the inside before publication: appointment and removal power and OIRA review of significant rules (cost-benefit analysis under E.O. 12866, updated by E.O. 14094). A new president's first memo is typically a regulatory freeze on unpublished rules.

What is OIRA?

The Office of Information and Regulatory Affairs in the White House OMB. It reviews significant rules, runs cost-benefit analysis, and checks consistency with presidential policy and other agencies.

What are the three judicial checks on rules under APA § 706?

1. Statutory and constitutional authority (Loper Bright, major questions).

2. Procedural compliance (Vermont Yankee, no extra procedures).

3. Substantive rationality, hard look, arbitrary and capricious (State Farm).

What can a court do if a rule fails judicial review?

Vacate (set aside) the rule and send it back to the agency.

Compare presidential and judicial control.

• Presidential control comes from inside before publication.

• Judicial control comes from outside after the final rule, requires a plaintiff with standing, and cannot rest on disliking the president's politics.

What is the chapter's big-picture conclusion?

APA § 553 sets minimum procedures, supplemented by hybrid steps. Agencies are powerful (a fourth branch or 3.5), but Congress, the president, and the courts all keep them in check