July 02, 2008
Administrative law jurisprudence is an acknowledged mess. Following its development and application involves a lot of banging one’s head against the wall. Yet, while application of administrative law doctrines is often “enshrouded in considerable smog,” many of the governing rules and standards are relatively settled. For example, there is no question that agencies promulgating legislative rules must follow the public notice and comment requirements of the Administrative Procedure Act (APA). Courts and scholars struggle to define the precise boundaries of the legislative rule category, but courts have little difficulty concluding that an agency rule with clear legal effect, binding regulated parties and the government alike, and carrying congressionally-imposed penalties for noncompliance, qualifies as legislative.