The Commenting Power: Agency Accountability through Public Participation

Abstract

Whether you are a member of the resistance movement or a cheerleader for the new Trump Administration’s regulatory reform agenda, this Essay intends to engage your passion. (Of course, scholars, students, and agency officials should be interested too.) The notice and comment rulemaking process governing the creation of most regulations generated by federal agencies includes an obligation that agencies respond to public comments. This public participation requirement, with its “two way street” obligation to dialogue, is a critical check on agency power. The laws in this area are ones about which anyone interested in regulation should know more. Describing general precedents, including two recent exemplar cases from the D.C. Circuit on April 11, 2017 and July 18, 2017, this Essay provides a critical tutorial for anyone interested in getting involved — for or against regulatory change. It helps one understand why what this Essay dubs the “commenting power” is so critical in our democratic republic.

Keywords: Administrative Law, Notice and Comment Rulemaking, Informal Rulemaking, Administrative Procedure Act, Agency Comments, Legislative Rules, Regulations, Regulatory Reform, Agency Duty to Respond to Comments, Arbitrary and Capricious, Judicial Review of Agency Decisionmaking, Trump Administration