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Authority to Review Agency Rulemaking

7. What is the judiciary’s authority to review agency rule making?

Individuals may challenge an administrative action in an Article III court. Generally, a judicial challenge to administrative rulemaking must be a challenge to the procedures followed by the agency. Per administrative procedure, the agency must propose rules within the the express grant of authority from the legislature. Exceeding the scope of authority may result in a court finding the proposal void. Once the court decides that a rule of an agency is authorized and constitutional, it will not address the wisdom or effectiveness of the rule. The court will review the constitutionality of the delegation of authority based upon the following:

•    Definiteness – The delegation of authority to the administrative agency by Congress must be set forth with sufficient clarity so that all concerned, especially reviewing courts, will be able to determine the extent of the agency’s authority.

•    Limited – An executive or legislative delegation of authority must be limited. The delegating authority must provide in the enabling statute or the agency’s charge that its power is limited – though it does not have to specifically outline those limitations. These authorities must take steps to implement procedural safeguards to prevent any arbitrary or abusive practices by the agency.

Regardless of the purpose of effect, courts will hold that an agency exceeds its authority if an analysis of legislative intent confirms that the agency has gone beyond that intent.

•    Discussion: Do you think it is a good idea to limit judicial review of administrative rulemaking to the procedural aspects of the rulemaking process?

•    Practice Question: Tammy is angry about new regulations from the Federal Trade Commission that limit the importation of products that contain specific technologies. She sells a product that employs the regulated technology and she wants to contest the agencies new rules. During the rulemaking process, she voiced her dissent to the regulations. Now that the regulations are in effect, what can Tammy do to challenge the FTC’s rulemaking?

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