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'Practically Binding': General Policy Statements and Notice-and-Comment Rulemaking

21 Pages Posted: 3 Dec 2015 Last revised: 7 Jan 2016

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: January 6, 2015

Abstract

Over the last two decades, lower courts have repeatedly held that agencies must use notice-and-comment procedures before they issue purported policy statements that are “practically binding,” in the sense that they are fixed and firm. As a matter of policy, this requirement has both desirable and undesirable consequences. It increases the likelihood that agencies will benefit from public comments, but it also creates a strong incentive for agencies to speak vaguely or not to issue policy statements at all. The requirement therefore has epistemic advantages while also encouraging open-ended standards rather than clear rules. As a matter of law, the practically binding test is an unjustified departure from the best reading of the APA. The Supreme Court’s decision in Vermont Yankee rules that departure out of bounds. It is true that Vermont Yankee suggests an approach that would revolutionize a large number of existing doctrines and that for good reasons, the Court has declined to endorse the full Vermont Yankee-ization of administrative law. But the practically binding test is beyond the pale.

Over the last two decades, lower courts have repeatedly held that agencies must use notice-and-comment procedures before they issue purported policy statements that are “practically binding,” in the sense that they are fixed and firm. As a matter of policy, this requirement has both desirable and undesirable consequences. It increases the likelihood that agencies will benefit from public comments, but it also creates a strong incentive for agencies to speak vaguely or not to issue policy statements at all. The requirement therefore has epistemic advantages while also encouraging open-ended standards rather than clear rules. As a matter of law, the practically binding test is an unjustified departure from the best reading of the APA. The Supreme Court’s decision in Vermont Yankee rules that departure out of bounds. It is true that Vermont Yankee suggests an approach that would revolutionize a large number of existing doctrines and that for good reasons, the Court has declined to endorse the full Vermont Yankee-ization of administrative law. But the practically binding test is beyond the pale.

Keywords: practically binding, public comment, general policy statements, administrative procedure

Suggested Citation

Sunstein, Cass R., 'Practically Binding': General Policy Statements and Notice-and-Comment Rulemaking (January 6, 2015). Available at SSRN: https://ssrn.com/abstract=2697804 or http://dx.doi.org/10.2139/ssrn.2697804

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

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Cambridge, MA 02138
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Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

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