Tailoring the Scope of Judicial Remedies in Administrative Law

Abstract

Rulemaking can be procedurally treacherous terrain for agencies as the result of a series of challenges built into the structure of administrative law. First, rulemaking is costly, as compiling a rulemaking record and establishing a supporting enforcement apparatus often requires extraordinary investments of time and money. As a consequence of these challenges, the legal uncertainty associated with major rulemakings is also very costly. Second, an agency seeking to promulgate a new rule faces inherent uncertainty about whether a court will ultimately deem the rule to be a valid exercise of its authority. This is especially so for an agency attempting to introduce a new regulatory program, where the legal, scientific, or economic bases for the rule have not previously been reviewed by a court. Third, when a reviewing court determines that an administrative rule is legally infirm, the typical, default remedy is vacatur of the entire rule.

In addressing these challenges, the scholarly literature mostly focuses on what courts can do to minimize the collateral costs of judicial review of agency actions. For example, a common theme in the scholarly literature urges federal courts to review agency actions under deferential standards of review. This study, by contrast, examines the techniques that federal agencies employ or have considered employing to mitigate the costs of remedying legal infirmities in agency rules. We report the results of interviews of officials in various agencies’ offices of general counsel with responsibility either for providing advice on the form and content of proposed rules or for overseeing the defense of agency rules in litigation. Based on these interviews, we then recommend best practices for agencies to consider when promulgating rules and defending them in court.