Re-Inventing Rulemaking

E. Donald Elliott, Yale Law School


Bob Anthony and Tom McGarity both maki a number of important,
perceptive points, and I find myself in substantial agreement with
each of them.

I have only two principal disagreements with Bob Anthony. First, I
believe that a court should not go behind the objective terms of a statement
of agency policy to speculate about whether the statement was "really
intended" to bind the public. If by its terms an agency's general
statement of agency policy is limited to establishing general policies and
explicitly states that the policies must be justified de novo in subsequent
applications where the policies are challenged, then a court should not
invalidate the policies-on the grounds that, contrary to what the agency's
statement says it is, the court thinks that it is "really" or "practically" a
"non-rule rule" made without benefit of proper rulemaking procedures.

Second, I believe that courts should not attempt to force all agency policymakinginto the mold of notice-and-comment rulemaking. Noticeand-
comment does not always provide genuine public participation in
legislative rulemaking; it is useful primarily as a record-making device
and is generally employed when a rule is in near-final form.