Making Sense of Issue Exhaustion in Rulemaking

Abstract

When reviewing the validity of a rule, should a court consider issues that were not presented to the agency during the underlying rulemaking proceeding? In 2015, the Administrative Conference of the United States explored this question, drawing upon a consultant’s report prepared by Professor Jeffrey Lubbers, but did not reach a consensus on how to answer it. This essay, written to accompany the publication of the Lubbers report, proposes some answers. The thrust of the analysis is that judicially imposed requirements for issue exhaustion in rulemaking are, in general, legitimate, even in the absence of legislation that specifically authorizes such requirements. However, an exception should be recognized with respect to key assumptions of the rule and of the procedure that gave rise to it. These principles should apply both to judicial review litigants who previously participated in the rulemaking and to defendants who first encounter a rule when the government commences enforcement proceedings against them.

Keywords: administrative law, judicial review, rulemaking, exhaustion, issue exhaustion