Show notes
When Congress delegates to a federal agency the responsibility for implementing, administering, and enforcing a law, it also authorizes the agency to make and promulgate rules about how it will do that. These rules will often be issued first as a notice of proposed rulemaking, giving the public the opportunity to comment before the regulation becomes final and goes into effect. Many agencies, however, also avail themselves of another, less well-known rule-making tool: adjudication. Rather than promulgate a regulation, these agencies often announce and apply new policies - even ones that will have broad applicability – in the form of decisions resolving disputes with the agency. These decisions are then applied as precedent by the agency. Some agencies including the National Labor Relations Board, the Federal Elections Commission, the Equal Employment Opportunity Commission, and other federal agencies, essentially announce and implement all policies this way. That agencies use adjudication to announce and implement policy is not new, but critics contend that it eliminates fair notice of the rule and avoids public participation in its development.
Policy implemented through notice-and-comment rulemaking is generally applied prospectively only, and has the benefit of the agency having solicited and, ideally, responded to public comments. Policy implemented through adjudication, however, has not had the benefit of public input. Further, the application is generally retroactive. To avoid retroactive application of a rule, regulated parties can be inclined to simply comply with an agency's demands, thus depriving the public of a fair test of the agency’s position. Finally, agency adjudication – performed by an agency’s administrative law judge, and appealable to agency leadership who may wish to use the case to make new policy - can be seen to be biased.
How weighty are these concerns? What is the proper role of agency adjudication? What deference, if any, should courts give policies agencies announce through adjudication? What safeguards could be designed and implemented to prevent the misuse of agency adjudication?
Prof. Jack Beermann, Professor of Law, Boston University School of Law
Mrs. Allyson N. Ho, Partner, Gibson, Dunn & Crutcher
Mr. Stephen A. Vaden, Principal Deputy General Counsel, United States Department of Agriculture
Prof. Christopher J. Walker, Associate Professor of Law, The Ohio State University Moritz College of Law
Moderator: Hon. Gregory G. Katsas, U.S. Court of Appeals, District of Columbia Circuit
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