Legislating for Non-Legislative Rules

Abstract

For many years, the courts have done a poor job in dealing with nonlegislative rules, B interpretive rules, and statements of policy - in a variety of contexts: determining when a rule is an interpretive rule or statement of policy as opposed to a legislative rule, assessing when nonlegislative rules are judicially reviewable, and assigning the appropriate level of deference to agency interpretations contained in nonlegislative rules. While one might well address these issues in a traditional law review article, to treat them together in the holistic fashion that they deserve in such an article would exceed the space limitations imposed by the Forum to which this article was submitted. As a result, I chose a different and perhaps more direct path: Drafting a proposed bill and its associated committee report explaining why the proposed bill is necessary and precisely how it works. In short, the proposed bill would require nonlegislative rules to contain a contemporaneous statement by the agency that the rule does not have binding legal effect. Such a statement would be conclusive proof that the rule was nonlegislative. Absent such a statement, it could not be a nonlegislative rule. This amendment builds on the success of requiring such a statement for emergency rules. Nonlegislative rules would be final agency action and therefore reviewable if they had a practical adverse impact on the person seeking review. This would codify the rule established in National Automatic Laundry and Cleaning Council v. Shultz and create uniformity where there now exists disarray. Finally, such rules would be entitled to Skidmore respect but not Chevron deference, whether they interpreted statutes or an agency's own regulations. This would be consistent with the Supreme Court's decision in United States v. Mead, but it would effectively overrule the Seminole Rock line of cases.