The Role of Government Attorneys in Regulatory Agency Rulemaking

Abstract

Every time a federal regulatory agency exercises its power to write rules to govern private conduct, it must be prepared to resolve a wide variety of technical, economic, political, and legal issues. To assist them in these efforts, the agencies have invented a variety of internal decisionmaking models to bring different kinds of expertise to bear on regulatory problems. Legal expertise is nearly always required at some stage of the internal decisionmaking process because regulatory agencies are created by statute, agency powers are vested and limited by statute, and virtually all agency rules are subject to judicial review for substantive rationality, procedural correctness, and fidelity to those statutes and the Constitution. Agency lawyers from the Office of General Counsel (sometimes called the Office of the Solicitor) therefore play important roles in internal agency decisionmaking. Not surprisingly, the roles that agency lawyers play in many ways mirror the roles that reviewing courts play in reviewing agency rules under the Constitution, agency statutes, and general statutes like the Administrative Procedure Act (“APA”). This essay will explore the many roles that agency lawyers can play in the internal processes of developing proposed rules and responding to public comments on those rules. After briefly describing the two predominant models of the internal decisionmaking process from the lawyer’s perspective, the essay will examine how the agency lawyer functions within those models. In virtually all rulemaking contexts, agency lawyers have the power to determine external