Rulemaking as Legislating

Kathryn A. Watts

University of Washington - School of Law

October 3, 2014

Georgetown Law Journal, Forthcoming
University of Washington School of Law Research Paper No. 2014-17

Federal administrative agencies make far more legally binding policy decisions than Congress. Yet the Supreme Court refuses to embrace the notion that agency rulemaking constitutes an exercise of Article I legislative power. Instead, the Court has long insisted that agency rulemaking represents an exercise of executive power so long as Congress sets forth an intelligible principle. This position, which is driven by the nondelegation doctrine’s central premise prohibiting Congress from delegating legislative power, was reaffirmed by the Court as recently as the 2012 Term.

Various judges and scholars have decried the fictional nature of the Court’s current nondelegation doctrine, and some have called for the Court to abandon the doctrine’s central premise prohibiting delegations of legislative power. These calls, however, have been narrowly focused on the constitutional contours of the nondelegation doctrine itself. Scholars, accordingly, have paid little attention to how the nondelegation doctrine has created doctrinal inconsistency that reverberates throughout administrative law. This Article aims to fill that gap. Specifically, this Article is the first to systematically explore how administrative law’s most central doctrines — including Chevron and Auer deference, arbitrary and capricious review, procedural constraints on agency rulemaking, procedural due process and the test used to define legislative rules — have been influenced by the Court’s nondelegation jurisprudence, and how these various doctrines would be impacted if the Court jettisoned the nondelegation doctrine and frankly acknowledged rulemaking as an exercise of delegated legislative power. This Article concludes that some key administrative law doctrines at least implicitly recognize that agency rules flow from delegations of legislative power, putting those doctrines in tension with the nondelegation doctrine. In contrast, other key administrative law doctrines refuse to view agency rulemaking through a legislative lens, aligning them with the nondelegation doctrine’s central premise. Thus, the Court would need to change some administrative law doctrines and clarify others if the Court rejected its current approach and held that Congress constitutionally can and routinely does delegate legislative power. Although these doctrinal changes would have their costs, the changes would be normatively desirable. By openly recognizing that rulemaking flows from a delegation of legislative power, many of administrative law’s disparate doctrines, which have long been operating under a clouded view of rulemaking, would gain a more unified, coherent lens. In addition, the Court would free itself of the longstanding doctrinal fiction that legislative rules constitute the exercise of executive power.

Number of Pages in PDF File: 71

Keywords: administrative law, delegation, nondelegation doctrine, deference, judicial review, separation of powers, Article I, Article II, constitutional law, legislative rules, non-legislative rules, legislative power, lawmaking

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Date posted: May 8, 2014 ; Last revised: February 20, 2015

Suggested Citation

Watts, Kathryn A., Rulemaking as Legislating (October 3, 2014). Georgetown Law Journal, Forthcoming; University of Washington School of Law Research Paper No. 2014-17. Available at SSRN: http://ssrn.com/abstract=2433742

Contact Information

Kathryn A. Watts (Contact Author)
University of Washington - School of Law ( email )
William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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