The Law That Agencies Make

In our system of separated powers, every branch of government ‘makes law’—legislatures enact statutory law, courts create common law, and executive branch agencies craft regulations via ‘rulemaking.’ In our discussion topic for this week, I’d like you to consider the following two points.
First, while (at the federal level) the Administrative Procedure Act specifies a ‘formal’ rulemaking process that requires rounds of public notice and comment regarding proposed agency rules, the Act contains a variety of exceptions (e.g., it doesn’t apply to many internal agency rules such as those regarding personnel or apply to rules dealing with military or security affairs). These and similar statutory exceptions, plus how agencies have chosen to act in legal grey areas, have led to a complex rulemaking landscape in which half or fewer of rules are made through the full formal process, with the rest being made through negotiated rulemaking or various informal processes. In your view, what are the possible advantages and disadvantages of this state of affairs? Would it be better for rulemaking to be constrained more stringently to the formal process specified in laws like the APA, or is it better for rulemaking to occur fairly often through more flexible (and often less publicly visible or accountable) means?
Second, contemporary administrative law is built upon the landscape of American federalism and is thus shaped by what is known as pre-emption doctrine. I’d like you to explain your views about preemption doctrine as we are considering it, including: a) whether you think federal law should indeed be able to preempt state and local law at all (i.e., whether you think this is a correct understanding of the Supremacy Clause), b) whether you think all three of the current kinds of preemption (express, field, and conflict) ought indeed to be enforced by courts, or whether one or more ‘goes too far’ and c) whether you think federal regulations ought to be able to preempt state and local law (whether that means legislation, court rulings, or regulations as well), or whether you think such regulations ought to have lesser weight with respect to preemption than congressional statutes or federal court rulings.

Last Completed Projects