Authority to Review Agency Rulemaking

Cite this article as: Jason Mance Gordon, "Authority to Review Agency Rulemaking," in The Business Professor, updated January 4, 2015, last accessed April 9, 2020, https://thebusinessprofessor.com/knowledge-base/authority-to-review-agency-rulemaking/.
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Authority to Review Administrative Agency Rules
This video explains the authority of the court to review rules made by administrative agencies.

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What is the judiciary’s authority to review agency rulemaking?

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?

Discussion Input

  • This may seem, at first glance, to be far too limited. It is important to remember that this is the process for challenging the agency’s rulemaking action. If an individual is negatively impacted by the agency’s rule, she may be able to bring a legal action challenging the constitutionality of the rule itself.

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?

Proposed Answer

  • Tammy can challenge the rulemaking procedure in the federal district court. The court will determine whether the enabling statute is adequately limited and definite in nature. Also, it will review to make certain all aspects of the Administrative Procedures Act were followed. If all of these are present, the action will fail. Tammy may also be able to bring a cause of action stating that the rule itself is unconstitutional. This is only available if she has been negatively impacted by the rule (i.e., has standing to sue) and can demonstrate that the rule violates her rights and does not meet the applicable standard of review.

Academic Research

Asimow, Michael R. and Dotan, Yoav, Open and Closed Judicial Review of Agency Action: The Conflicting U.S. and Israeli Approaches (November 30, 2016). American Journal of Comparative Law, Vol. 64, 2016; Stanford Public Law Working Paper No. 2878072; Hebrew University of Jerusalem Legal Research Paper No. 17-6. Available at SSRN: https://ssrn.com/abstract=2878072or http://dx.doi.org/10.2139/ssrn.2878072

Seidenfeld, Mark, Cognitive Loafing, Social Conformity and Judicial Review of Agency Rulemaking (August 2001). Cornell Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=280251 or http://dx.doi.org/10.2139/ssrn.280251

Keller, Scott A., Depoliticizing Judicial Review of Agency Rulemaking (March 23, 2009). Washington Law Review, Vol. 84, p. 419, 2009. Available at SSRN: https://ssrn.com/abstract=1367244

Bull, Reeve and Ellig, Jerry, Judicial Review of Regulatory Impact Analysis: Why Not the Best? (03/09/2017). MERCATUS WORKING PAPER. Available at SSRN: https://ssrn.com/abstract=3191363 or http://dx.doi.org/10.2139/ssrn.3191363

Garry, Patrick M., Judicial Review and the ‘Hard Look’ Doctrine. Nevada Law Review, Vol. 7, No. 1, 2006. Available at SSRN: https://ssrn.com/abstract=1028834

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