A Change of Policy: Promoting Agency Policymaking by Adjudication

Abstract

The Administrative Procedure Act and Supreme Court precedents permit federal agencies to articulate new policy through both rules and adjudicative orders. Yet over the past several decades, a once strong culture of policymaking by adjudication within agencies has given way in favor of informal rulemaking, such that President Trump issued an executive order last year that appears to be intended to, in part, prohibit the practice. At the same time, some in academia, such as Kristin Hickman and Aaron Nielson in their new piece titled Narrowing Chevron’s Domain, have sought to limit agencies’ abilities to develop policy through adjudicative orders, arguing, for example, that courts should deny Chevron deference even to policies announced in formal adjudications and as designated precedential because they lack the public legitimacy of notice-and-comment rulemakings. In this article, I discuss why agencies must again give adjudication its due consideration as a real policymaking option, and why the method remains worthy of Chevron deference. Though it need not be used in every circumstance, developing policy through case-by-case adjudications—akin to courts’ development of the common law—can offer significant benefits over informal rulemaking, both to agency policymakers (e.g., speed, case-by-case policy development, ex post policy clarification, increased policymaking opportunities) and to the public (e.g., increased participation by marginalized communities, tailored policies). Adjudication can offer just as much rational reason-giving and accountability as informal rulemaking through practices that broadly permit public participation (e.g., intervention, amicus briefing, oral argument, publishing notice in the Federal Register of opportunities for public input, informing the public of newly-articulated policies) as does informal rulemaking. Agencies should consider how to incorporate adjudication into their policymaking activities, and courts should not exclude adjudicatory policymaking from receiving Chevron deference based solely on its form.