Cornell Law Review Volume 101 Issue 2

Open Minds and Harmless Errors: Judicial Review of Postpromulgation Notice and Comment

In 2012, the Government Accountability Office surprised many administrative law specialists by reporting that fully 35% of major rules and 44% of nonmajor rules issued by federal government agencies lacked prepromulgation notice and opportunity for public comment. For at least most of the major rules, however, the issuing agencies accepted comments from the public after issuing the rule, and in most of those cases the agencies followed up with new final rules, responding to comments and often making changes in response thereto. Agency rules that invert the procedural steps of notice-and-comment rulemaking in this way do not precisely comply with the Administrative Procedure Act, yet are arguably close enough that some courts have felt compelled to uphold them. Challenges to rules adopted in this manner have created a jurisprudential mess, as courts struggle to balance their duty to enforce the requirements of the Administrative Procedure Act with the practical realities of the modern administrative state. The sheer extent of the practice demonstrates the need for a more consistent judicial response. This Article explores the different approaches courts have taken to judicial review of postpromulgation notice and comment. The Article concludes that the all-or-nothing models embraced by some courts are doctrinally and practically untenable, but that the middle-ground alternatives
employed by other courts thus far do not ensure that postpromulgation notice and comment function as an equivalent substitute for prepromulgation procedures. Fortunately, the existing jurisprudential muddle is not so rigidly fixed as to require Congress, or even necessarily the Supreme Court, to resolve it. The Article proposes a solution to the middle-ground problem, first by reviewing the doctrinal theory surrounding agency rulemaking and then by articulating a setof factors for courts to employ in evaluating postpromulgation notice and comment case by case.

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