Nonlegislative Rules Research Articles

Ambiguity, Agencies, and the Administrative Procedure Act: Analyzing the OSHA Rule Revision Concerning Agency Access to Employee Medical Records

Agencies have been seizing on the ambiguity in the Administrative Procedure Act notice and comment exemptions and classifying rules as non-legislative in order to forego the notice and comment process. Notice and comment affords interested parties the opportunity to engage with the agency prior to the promulgation of the final rule by allowing the public a voice and demanding the agency listen. OSHA classified the July 2020 rule revision concerning agency access employee medical records rule as one of agency procedure and promulgated it without notice and comment. This Comment focuses on the provision of the rule revision that eliminated the requirement that employers remove personal identifiers from records prior to turning them over to OSHA. The ambiguous language of the statute allows agencies to misuse the APA notice and comment exemptions. The OSHA rule revision is only one example of agencies abusing the APA exemptions to promulgate legislative rules without notice and comment. This ambiguity has become even more murky because courts have been unable to answer the question with a clear and consistent test. The variety of approaches has left the public voice without proper protection because agencies continue to misuse the APA notice and comment exemptions. If a precise definition of the exemptions is incorporated into the statute, or if the Supreme Court establishes a clear test to decipher legislative from non-legislative rules, or if agencies use the factors identified by courts as enlightening on this issue to accurately classify rules, the abuse and misuse of the APA exemptions will be mitigated because agencies will not be able to promulgate legislative rules under the guise of the APA non-legislative rule exemptions.

Indian Tribes and Agency Policy: When the Trust Doctrine Trumps the APA

In some instances, the Indian trust doctrine attaches to federal agency policy documents and renders them judicially enforceable, a situation this paper terms the guidance principle. This Principle is unique because it creates a narrow exception to the general exemption of nonlegislative rules from judicial enforcement under the Administrative Procedure Act. Therefore, under the Principle, federal common law — the Indian trust doctrine — sometimes trumps the APA. This paper examines the binding guidance principle's jurisprudence, and explores its origins, which courts have applied primarily to tribal consultation policies thus far. It then explains how and why the Principle may be ripe for expansion, as well as how it may prove a useful tool for Indian tribes to further their litigation goals outside of the consultation context. Accordingly, this paper explains how tribes might use the Principle to protect themselves from adverse agency action by holding agencies responsible for their guidance documents in court.

English Foundations of US Administrative Law: Four Central Errors

Philip Hamburger posed a provocative challenge to administrative law in the USA, as attested to by the title to the book, which asked whether administrative law was unlawful. His thesis was grounded in English administrative law, as it developed in the seventeenth century and eighteenth centuries, when lawyers in the American colonies would have been familiar with it. It is central to Hamburger’s argument that much of administrative law concerning both rulemaking and adjudication was “extralegal” and was thus regarded by English law during this period. In an earlier article I argued that this thesis was wrong as adjudged by positivist and non-positivist sources alike.Hamburger responded to my article, and took issue with the argument made therein. This article is a response to Hamburger’s latest offering. The flaws in Hamburger’s argument are even clearer now than hitherto, and there are numerous such mistakes. This article will, however, concentrate on four errors that are central to his thesis. First, Hamburger’s thesis rests on the argument that administrative law is extralegal, and hence illegitimate and unlawful. It is the central construct from which all else flows. In my earlier article I contended that there were serious difficulties with his conception of the term extralegal. I was wrong. It is untenable. It will be seen that this is so when judged from the perspective of first principle, and from the perspective of positive law. Hamburger’s project is thus built on an intellectual construct that does not withstand scrutiny. It is a pillar of sand.Secondly, Hamburger’s thesis as to the legitimacy of adjudication and rulemaking by bodies charged with administration in the seventeenth and eighteenth century is wrong. He contends that events such as the demise of Star Chamber and the repeal of the Statute of Proclamations show that administrative adjudication and rulemaking were generally perceived to be extralegal and illegitimate in England at this time. He maintains this fixed view, and is critical of any who differ, repeatedly contending that they have ignored the historical sources. The reality is to the contrary. Hamburger’s fierce insistence that his interpretation of these events is correct is combined with a signal unwillingness to consider whether that interpretation coheres with the evidence. This is a dangerous cocktail, which leads repeatedly to error. His interpretation is not correct. It is irreconcilable in empirical terms with a very great deal of regulatory legislation enacted over two hundred years, in which Parliament continually accorded the administration with powers and duties of a kind that are inconsistent with Hamburger’s thesis. His argument is also incompatible with thousands of cases decided by the courts via judicial review, in which the courts accepted the grant of such authority as lawful, and did not in any way characterize it as extralegal or irregular. Hamburger’s thesis is moreover defective in failing to recognize the clear normative differences between the situations where administrative adjudication and rulemaking were regarded as lawful and those where they were not. Thirdly, the qualifications that Hamburger makes to his own thesis are conceptually incoherent and do not fit with the empirical evidence. Hamburger seeks to qualify his conclusion that administrative law is extralegal and unlawful. His modality for doing so in the context of rulemaking is through definition of legislative and non-legislative rules; while in the context of adjudication it is done through definition of the term judicial. These qualifications are central to Hamburger’s thesis. The meaning of these terms is, however, conceptually incoherent. It is also inconsistent with much empirical evidence, since as will be seen below the legislature frequently accorded the administration power of a kind that Hamburger believes that it did not and should not have had. The fourth error in Hamburger’s thesis is methodological. Hamburger takes my earlier argument to task, contending that it was predicated on some brutish Austinian positivism, which ignored constitutional ideals. This is, as will be seen below, nonsense. It is nonetheless fitting that Hamburger should have raised the issue of methodology, since it will be seen that his own argument is premised on a constitutional methodology that is unsustainable both historically and legally. He seeks to defend a far-reaching argument that an entire body of law is unlawful, while ignoring a very considerable body of evidence in terms of legislation and judicial decisions that is inconsistent with his thesis. His argument is, moreover, premised on an indefensible distinction between ‘constitutional ideals’ on the one hand, and legislation and court decisions on the other, which ignores the normative values that are embodied in the latter.

Denying Deference: Civil Rights and Judicial Resistance to Administrative Constitutionalism

What determines the level of deference the Supreme Court gives to agency interpretations of statutes? One explanation is that deference choices accord with what I term the “deference dichotomy.” When agency interpretations are in a legislative rule adopted through notice-and-comment procedures and have the “force of law,” the Court applies a heightened deference framework. But when agency interpretations are in interpretive or other non-legislative rules adopted through less formalized procedures, the Court gives minimal or no deference. Although scholars have advocated that approach for decades and the Court has now adopted it as formal doctrine, the Court’s actual choice of deference framework follows a less predictable pattern. Some scholars have suggested ideology as an alternative explanation, but empirical studies across administrative law domains have come to conflicting conclusions about its effect on deference choices. Other scholars have argued that the complexity of the statute and judicial views about the agency influence deference choices, but these studies have not been generalized across agencies and statutes. In this Article, I employ a distinct approach, examining Supreme Court deference choices across multiple agencies administering multiple statutes in a single substantive field. I find that in the civil rights field, the Supreme Court’s deference choices appear to have been motivated by a factor that has gone unnoticed in the literature thus far — judicial resistance to “administrative constitutionalism.” To the extent that civil rights agencies resolve statutory questions central to ongoing constitutional controversies in the Supreme Court, such as the meaning of “discrimination,” they are practicing administrative constitutionalism — resolving interpretive questions that rest on constitutional values. When civil rights agencies have engaged with constitutional meaning in this way, the Court has refused to apply heightened deference to the agency’s interpretation of the statute even when precedent or the deference dichotomy suggests that it should. I argue that this judicial resistance to administrative constitutionalism implicates important questions about authority over constitutional meaning. When the Court denies heightened deference to administrative constructions of statutes implicating ongoing constitutional controversies, it is preserving its exclusive power to determine constitutional meaning. Such resistance places the Court in the role of defining the substance of civil rights statutes insofar as they implicate the Constitution, and thus supplements the Court’s often-remarked practice of curbing legislative constitutionalism.

Transnational and Trans-Territorial Rule-Making - A Basic Framework

This Article discusses the reality of executive rule-making procedures with trans-territorial effect, with other words, the creation of non-legislative rules which have an effect outside the territorial limits of the jurisdiction of origin. It maps the phenomenon, discusses some of its central challenges for the realization of general principles of law and considers possible legal approaches addressing these. One of the most important issues thereby is to find workable solutions in the context of the pluralism of sources of law – national, supranational and international.

'Groundbreaking' or Broken?: An Analysis of SEC Cyber-Security Disclosure Guidance, its Effectiveness, and Implications

In October 2011, the Securities and Exchange Commission (SEC) responded to mounting concern about the threat of cyber-attacks on corporate America by issuing staff guidance on when publicly traded companies should disclose information about cybersecurity vulnerabilities and attacks in their annual public filings. This SEC cybersecurity disclosure guidance has escaped serious analysis until now. Using case studies and paying particular attention to the comment letters sent by the SEC to registrants to prompt greater disclosure, this article concludes that the guidance both procedurally overreaches and substantively underachieves. It overreaches because, while it is facially a nonlegislative rule, it has had the practical effect of binding private conduct as if it were a legislative one, violating the Administrative Procedure Act. It underachieves because the disclosures it requires are vague, similar across industries and companies, and bring little information to the marketplace. In particular, it fails to resolve an information asymmetry problem — between corporate managers and stockholders — that the disclosure laws are meant to address. To resolve these defects, the SEC should elevate cybersecurity disclosure guidance and issue it as a legislative rule, after a notice and comment period. Notice and comment rulemaking would contribute to sounder policy by allowing stakeholders to offer their expertise and experience at the front-end of the rulemaking process, improving the rule and its acceptability among the public. This guidance offers a counterexample to those who say that agencies do not commonly use guidance documents to make important policy decisions outside of the notice and comment process. The experience with this guidance also suggests the limits of agency creativity during periods of political ossification, and it challenges the simple verity that economic security and national security have merged.

Midnight Rules: A Reform Agenda

There is a documented increase in the volume of regulatory activity during the last ninety days of presidential administrations when the President is a lame duck, having either been defeated in a bid for re-election or being at the end of the second term in office. This includes an increase in the number of final rules issued as compared to other periods. The phenomenon of late-term regulatory activity has been called “midnight regulation,” based on a comparison to the Cinderella story in which the magic wears off at the stroke of midnight. This Article looks closely at one species of midnight regulation— namely, midnight rules. This Article defines midnight rules as agency rules promulgated in the last ninety days of an administration. This Article focuses on legislative midnight rules (normally issued under the notice and comment procedures of the Administrative Procedure Act (APA)), because they are the most visible and often the most controversial actions taken in the final days of administrations and because they are usually the most difficult to alter or revoke among the various midnight actions taken by outgoing administrations. However, because late-term activity goes beyond legislative rulemaking, this report also discusses, to a lesser extent, other phenomena such as the issuance of non-legislative rules including interpretative rules and policy statements; non-rule regulatory documents, such as guidance documents and executive orders; and the use of other presidential powers, such as the pardon power and the ability to entrench political appointees into protected employment positions in the new administration. This Article documents the existence of the midnight rules phenomenon both quantitatively and qualitatively, using numerical measures of the volume of rules and qualitative analysis of some rules as illustrations. The Article reviews various explanations for the existence of the phenomenon, ranging from the simple human tendency to work to deadline, to more complicated political factors that may affect the timing of rules. The Article also reports on interviews of officials involved in rulemaking to inform the analysis of the causes and effects of the midnight rulemaking phenomenon. This Article also addresses midnight rulemaking from a policy perspective, asking whether there are reasons to be concerned about the phenomenon. Midnight rulemaking and midnight regulation generally have been strongly condemned by commentators and media from across the political spectrum. There are at least two possible sets of concerns regarding the increase in rulemaking at the end of an administration: first, midnight rules may be of lower quality than rules issued at other times during administrations, and second, midnight rulemaking may involve undesirable political consequences, mainly the unwarranted extension of an outgoing administration’s agenda into the successor’s term. It may be very difficult to arrive at firm conclusions on either of these potential objections to midnight rulemaking, but this Article will attempt to do so from various perspectives.

Administrative Law Through the Lens of Immigration Law

Immigration law does lag behind in the advancement of public law, but not in all respects. While immigration law is idiosyncratic in many ways, this article finds immigration law in the administrative law mainstream when it comes to its troubles with nonlegislative rules (sometimes called guidance documents). There are concerns throughout administrative law that agencies use such rules to bind regulated parties practically, even if not legally, without the procedural protections of notice and comment. This article analyzes immigration troubles with nonlegislative rules and makes three main contributions. First, it casts new light on the negative effects of guidance documents by viewing administrative law through the lens of immigration law. In immigration law, the cons of guidance documents play out in the context of some of life’s most fundamental questions: where and with whom to live and to work. Second, by showing how administrative law manifests in immigration law, this article concludes that immigration law’s troubles cannot be divorced from the mainstream administrative law debate over nonlegislative rules. Third, this article also evaluates a procedure new to immigration law: the draft memorandum for comment. Through the draft memorandum for comment procedure, the public may comment on draft guidance documents, but is not afforded the full protections of notice and comment rulemaking. While the new procedure is a pragmatic and positive step for immigration law, this article highlights that nonlegislative rules are not the only administrative tool available and argues for greater priority for notice and comment rulemaking in immigration law.

In Defense of the Short Cut

Congress frequently gives administrative agencies a choice of several different tools, including legislative rulemaking, non-legislative rulemaking, and adjudication, to interpret and apply statutes. In theory, an agency should be able to announce an interpretation of a statute through a policy statement, interpretive rule or other form of non-legislative rule (often referred to more generally as “guidance documents”) without incurring the costs or delay of notice and comment rulemaking. As long as the agency does not treat that policy decision as binding, and justifies the decision when it is applied to a concrete factual situation, there should be nothing legally objectionable about the agency’s action. Nevertheless, courts have fashioned a variety of unworkable tests to distinguish between legislative and non-legislative rules, and have frequently struck down rules that agencies characterize as non-legislative rules on the grounds that the rules are, instead, legislative rules, and are invalid because they were not adopted through notice and comment procedures. Many academics have criticized this approach and have suggested that courts, in reviewing an agency’s policy decisions, should simply look at the procedures that the agency uses to make those decisions. If the agency does not use notice and comment rulemaking, the reformers argue, a court should conclude that the agency’s policy decision is a non-legislative rule, and the court should simply accord the policy the effect and deference due to a non-legislative rule, instead of trying to determine whether the policy is a legislative rule or non-legislative rule. This proposal, sometimes referred to as “the short cut,” has generated much scholarly debate, including recent articles by Professors David Franklin and Mark Seidenfeld. Critics argue that the proposal reduces public input in agencies’ policymaking and reduces judicial oversight, because agencies’ non-legislative rules may not be reviewable in court. Supporters of the proposal counter that it does not eliminate public or judicial oversight of non-legislative rules, but merely delays review until the agencies’ policy decisions are applied in a concrete factual setting. This article critiques the proposals of Professors Franklin and Seidenfeld and advances an alternative reform proposal. In order to address the concerns raised by reformers regarding lack of public and judicial oversight of agencies’ policymaking under “the short cut”, without imposing substantial costs on the non-legislative rulemaking process that could discourage its appropriate use, the article proposes (1) an expansion of judicial review for non-legislative rules, but only in cases where an agency’s non-legislative rule is unlikely to ever be applied to a concrete factual situation because it announces a decision to de-regulate or to not enforce the law or regulations in specific instances; and (2) legislation to require posting of significant guidance documents on the Internet, an opportunity for public comment on those documents and posting of the comments on the Internet, without an obligation on the agency to prepare a “concise general statement of the basis and purpose” of the guidance or to respond to the comments.

Substituting Substantive for Procedural Review of Guidance Documents

This article proposes that courts substitute immediate substantive review for procedural review of agency guidance documents. The article begins by reviewing the extensive literature about how courts should treat non-legislative rules. Because such rules play an important role in assuring coherence and accountability of agency policies and interpretations and in communicating the views of agencies about such matters the article agrees with those who advocate ex-post monitoring of agency use of rules issued without notice and comment procedures. Recognizing that ex-post monitoring leaves much leeway for agencies to abuse guidance documents by depriving stakeholders of opportunities to participate in their development and of obtaining substantive judicial review of them, the article advocates that non-legislative rules generally should be subject to arbitrary and capricious review when issued. The article proceeds to explain why other proposals to rein in agency discretion to use guidance documents – in particular making the agency explain its decision to proceed by this mode and forcing the agency to consider timely petitions for reconsideration of such documents – are likely to have less effect with greater cost than its proposal for direct review of guidance documents. In advocating for such review, however, the article contends that courts will need to massage doctrines governing availability of review, such as those governing finality and ripeness of guidance documents. Even more significantly, the article argues that review for reasoned decision-making will have to be modified to avoid seriously compromising the speed and procedural flexibility which makes guidance documents an attractive means for agencies to communicate their views of policy and interpretation. It therefore develops a variant on arbitrary and capricious review that would require agencies to explain issuance of guidance in terms of factors that are relevant and alternatives that are plausible given the state of knowledge available to the agency when it acted. The article concludes that such a doctrine can encourage agencies to solicit input even from stakeholders outside the issue networks affected by the guidance document, while preserving sufficient flexibility for the agency to issue the document quickly and without undue procedural burden.

When is a 'Rule' a Regulation? Marking a Clear Line Between Nonlegislative Rules and Legislative Rules

This article begins by noting the difficulty courts have had in trying to determine whether a rule adopted without notice and comment, which the agency claims is an interpretive rule or statement of policy, is really such a rule or is instead a legislative rule that is invalid because it failed to go through notice and comment. This judicial dilemma occurs in two circumstances: one is when a person wishes to establish the invalidity of a rule on procedural grounds, asserting that because the agency failed to engage in notice and comment on the rule, the rule must be invalid, but the agency responds that the rule is interpretive or is a statement of policy exempt from notice and comment; the other circumstance is when a person challenges an agency action on the grounds that is contrary to an agency 'rule,' but the agency responds that the rule is not 'legislative' and therefore does not bind the agency. In both circumstances, the agency wishes to show that the rule is non-legislative, while the private party wishes to show the rule is legislative. The article proposes a simple test to replace the multiple and confusing tests currently used by courts, which provide little predictability to outcome and little guidance to agencies. That test is simply that if the agency did not use notice-and-comment rulemaking and claims the rule is interpretive or is a statement of policy, then the rule is a non-legislative rule exempt from notice and comment. Responding to the expected criticism that this would enable agencies to evade notice-and-comment rulemaking even while making substantive policy, the article emphasizes that currently courts focus on the wrong issue - the procedural validity of the rule, rather than focusing on the substantive validity of the rule. The article then provides a number of examples drawn from recent or historic cases to show that such a new approach would safeguard against agency abuse, while providing a clear and predictable guide to agencies. The article concludes by demonstrating some circumstances where the current judicial approach results in anomalous results.

The Undervalued Non-Legislative Rule

* Professor of Law, and Distinguished University Scholar, Louis D. Brandeis School of Law, University of Louisville. 1 . 529 U.S. 576, 587 (2000) (citing examples of interpretations which do not demand such respect). 2. 533 U.S. 218, 226-37 (2001) (holding deference applies where it is clear that Congress delegated such authority). 3. By actual I mean Chevron deference, named for the U.S. Supreme Court holding in v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which in theory involves actual deference to agency pronouncements. Under Chevron, the review process proceeds as follows: When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. Id. at 842-43.

A Primer on Nonlegislative Rules

This article is derived from a panel presentation on interpretive at the Midyear Meeting of the Administrative Law and Regulatory Practice Section of the American Bar Association in February 2001. The article provides a description and analysis of the existing law regarding nonlegislative adopted by federal administrative agencies, that is, intepretative and statements of policy as used in the federal administrative procedure act. This description and analysis includes discussion of how courts determine when a rule is legislative or nonlegislative, what deference courts give to nonlegislative rules, and when preenforcement challenges are ripe for judicial review. The article then addresses the presentations of Professors Peter Strauss and Robert Anthony and Mr. Randy May, in which among other things the article suggests certain problems with Professor Strauss's use of the term publication rules in place of nonlegislative rules.

Nonlegislative Rules and the Administrative Open Mind

I have a great deal of admiration for Professor Robert A. Anthony's study of the binding effects of nonlegislative rules.1 His comprehensive blend of case research, field investigation, and thoughtful advocacy certainly deserves careful consideration. I will not be surprised, however, if the Article ultimately provokes more arguments than it settles. The administrative law community has, after all, had a good deal of trouble reaching agreement about the interrelationships among legislative rules, interpretive rules, and general statements of policy.2 In the brief observations that follow, I have no hope of dissipating the considerable smog3 that is frequently said to enshroud these terms; but perhaps this Comment can serve as a modest step towards the lowest achievable emission rate.