Courts Should Protect the Right to Participate in Agency Rulemaking

Thomas A. Berry andGregory MillWhen federal agencies choose to makebinding policy prospectively, those agencies are typically required to give interested parties an opportunity to influence the development of such rules through a process known as “notice‐​and‐​comment rulemaking.” To promulgate these binding rules, agencies are required by the Administrative Procedure Act (APA) to publish a general notice of proposed rulemaking and then give interested persons an opportunity to submit written data, views, or arguments for the agency to consider. Agencies may not ignore these comments; rather, they must respond to any relevant, significant issues that are raised by interested parties.These procedures exist for good reasons. The notice ‐​and‐​comment process facilitates the important democratic value of allowing interested parties and the public to participate in deliberative lawmaking. This participation is critical to the creation of rational rules that are not arbitrary or capricious. And public participation guards aga inst imposing unnecessary costs on regulated parties due to harms in a rule that an agency could have been alerted to.But because of the hurdles that the notice ‐​and‐​comment process places on agency rulemaking, agencies are incentivized to exploit exceptions to notice‐​and‐​comment rulemaking where they can. “Interpretative rules” and “general statements of policy,” for instance, are exempted from t...

Source: Cato-at-liberty - March 31, 2023 Category: American Health Authors: Thomas A. Berry, Gregory Mill Source Type: blogs