It Means What It Says: Deciphering and Respecting the APA's Definition of 'Rule'

Abstract

Justice Scalia and the rest of the United States Supreme Court has long recognized that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. This approach applies with considerable force to terms specifically defined by statute. By their very nature, such definitions must have real, substantive content; for otherwise there would be no purpose in defining the critical terms of a statute. And while we may not expect Congress to display perfect craftsmanship, if the definitions are ignored, there would be no statutory criteria at all to guide agency action. A lack of consistent, applicable criteria can, in turn, lead to regulatory confusion, with overlapping effects in other areas of the law that apply similar terms. This effect is only magnified when considering the Administrative Procedure Act’s (APA) definition of “rule” — perhaps the most important (and misunderstood) term in agency practice. Specifically intended to reduce the previous great confusion in the terms used in the field of administrative law, the definition of rule was always understood to be “very important” and was drafted to increase “clarification and certainty.”But unfortunately, despite the best efforts of Congress, lawyers from the beginning have been puzzled by the definition, and the confusion has not gone away. Courts, agencies, and practitioners have long neglected or simply failed to grasp the basic meaning of the 79 words in the broad statutory definition of rule, which encompasses policy statements, interpretive rules, and other items beyond standard regulations, which represent only one subcategory of the broad definition. This distortion is not harmless, as the degree of adherence to the basic definition of “rule” can have important consequences in determining whether various adjudicatory or rulemaking procedures apply. Moreover, the scope of the Congressional Review Act depends in large part upon its statutory definition of covered “rules,” which borrows liberally from the APA’s definition. And outside of administrative procedure, there are many miscellaneous statutes that rely upon categorizing “rules.”While the APA’s definition is admittedly somewhat long-winded, its 79 words and numerous clauses hold important meaning. Its breadth is not a “natal defect,” as then-Professor Scalia once asserted, but evidence of the importance of the individual terms making up the definition. Hopefully, this essay helps demonstrate the significance of these terms and clauses, and convinced readers not to look upon the definition with “benign disregard,” as Professor Scalia once advised. On the contrary, practitioners should follow Justice Scalia’s more recent admonitions opposing “a definition of rule that is meaningless,” and urging that “what Congress enacted...must be applied according to its terms,” because the definition can be applied, sensibly, according to its terms. Someday, perhaps Congress will heed the occasional calls to amend the definition, but until then, what alternative do we have, other than faithful, reasoned adherence to the statutory text? Ad hoc application and the resulting confusion are not the answer.