Skidmore Deference and Informal Statements under Administrative Law
Agency Rulemaking under Administrative Law
Agency rulemaking is the process by which administrative agencies create regulations that have the force of law. These rules interpret statutes, fill in legislative gaps, and provide detailed standards for enforcement.
Types of Rulemaking
Formal Rulemaking
Required when statutes demand rules be made "on the record after opportunity for an agency hearing."
Resembles a trial with witness testimony, cross-examination, and a formal record.
Agency must follow strict procedures under the Administrative Procedure Act (APA).
The rule has the force of law only if made through this formal process.
Informal Rulemaking (Notice-and-Comment Rulemaking)
The most common method.
Agency publishes a Notice of Proposed Rulemaking (NPRM) in the Federal Register.
Public is given an opportunity to comment in writing.
Agency reviews comments and issues a final rule.
Less formal, no evidentiary hearings required.
Hybrid or Other Rulemaking
Combines elements of both formal and informal rulemaking, such as allowing oral presentations but no formal trial.
Procedural Requirements in Rulemaking
Notice: Agency must inform the public of the proposed rule and its legal basis.
Comment: Opportunity for interested parties to submit feedback, data, or arguments.
Response: Agency must consider significant comments and explain its final decision.
Publication: Final rule published with effective date.
Judicial Review of Agency Rulemaking
Courts review whether the agency:
Followed required procedures.
Had statutory authority to issue the rule.
The rule is reasonable and not arbitrary or capricious.
Key Case Law in Agency Rulemaking
1. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
Issue: How courts should review agency interpretations of statutes.
Holding: Established the Chevron deference doctrine:
Step 1: Has Congress directly spoken to the precise issue? If yes, courts must follow Congress.
Step 2: If statute is ambiguous, courts defer to the agency’s interpretation if it is reasonable.
Significance: Gave agencies broad leeway in interpreting statutes when Congress is silent or ambiguous, thus empowering rulemaking.
2. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)
Issue: Review of agency decision-making process.
Holding: Courts must ensure agency decisions are not arbitrary, capricious, or an abuse of discretion.
Significance: Introduced the arbitrary and capricious standard in reviewing agency actions, including rulemaking.
3. Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983)
Issue: Whether an agency properly rescinded a prior rule.
Holding: Agency must provide a reasoned explanation when changing policy and cannot act arbitrarily.
Significance: Reinforced rigorous judicial scrutiny of rulemaking and policy reversals.
4. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978)
Issue: Whether courts can impose additional procedural requirements on agencies beyond those in the APA.
Holding: Courts cannot impose extra procedural rules beyond those in the APA unless required by statute.
Significance: Limited judicial interference in the rulemaking process to statutory requirements only.
Summary of Agency Rulemaking Process
| Step | Description |
|---|---|
| Statutory Authority | Agency must have authority under enabling statute. |
| Notice of Proposed Rulemaking | Publication of proposed rule to inform public. |
| Public Comment | Stakeholders submit written feedback. |
| Agency Review | Agency considers comments and may modify the rule. |
| Final Rule Publication | Rule is published with effective date and explanation. |
Important Concepts
Delegation of Authority: Congress delegates rulemaking power to agencies within statutory bounds.
Substantive vs. Procedural Rules: Substantive rules affect rights and obligations; procedural rules govern agency processes.
Legislative Rules: Rules with the force of law made through proper procedures.
Interpretive Rules: Agency interpretations that do not have the force of law and are exempt from notice-and-comment.
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