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Volume 108, Issue 1


The Undemocratic Roots of Agency Rulemaking

Emily S. Bremer

Associate Professor of Law, University of Notre Dame Law School

6 Mar 2023

Americans often credit—or blame—Congress for the laws and policies that govern their lives. But Congress enacts broad statutes that give federal administrative agencies the primary responsibility for making and enforcing the regulations that control American society. These administrative agencies lack the political accountability of those in public office. To address this democratic deficit, an agency seeking to adopt a new regulation must publish a notice of proposed rulemaking and provide an opportunity for the public to comment on the proposal. Heralded as “one of the greatest inventions of modern government,” the Administrative Procedure Act’s (APA) notice-and-comment rulemaking procedure is understood primarily as a means of legitimating administrative regulation by holding agencies democratically accountable to the public. This understanding is wrong.

This Article is the first to examine the pre-APA administrative practices that inspired the APA’s informal rulemaking provisions and show that those practices were not about democratic accountability or legitimacy. Instead, they were concerned with the targeted solicitation of views from the representatives of organized interest groups to inform the agency’s expert judgment. Congress, however, built a more democratic framework atop the foundation established by these pre-APA administrative practices. Congress also expected that agencies and courts would each contribute, in their own way, to the future elaboration and evolution of the APA’s minimal procedural requirements. The analysis reveals that what modern administrative law identifies as pathologies in informal rulemaking are natural—perhaps even intended—consequences of the APA’s statutory design. It also offers a more nuanced account of the purposes of the APA’s notice- and-comment provisions and further legitimates both agency procedural discretion and judicial common law. The Article concludes that the vision of informal rulemaking that agencies and courts have constructed based on Section 553’s skeletal provisions vindicates Congress’s intentions and is preferable to a vision bound by rulemaking’s undemocratic roots.

To read this Article, please click here: The Undemocratic Roots of Agency Rulemaking