This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here.

In this era of the rapid change in administrative law—both at the Supreme Court and from the White House—I am grateful that Senator Schmitt has stepped up as a thought leader in the Senate to encourage Congress to more ambitiously play its role in the separation-of-powers framework. Last March, here at the University of Michigan Law School, we hosted the Federalist Society national student symposium with two days of programming on how we can revive Congress to “draw[] all power into its impetuous vortex.” For those interested in how Congress could respond, videos of each of those panels, collected here, are worth a watch.

In my contribution to this symposium, I will not engage too much with Senator Schmitt’s various proposals. The other symposium essays cover a lot of ground, and I hope they will spark even more debate and deliberation—and dare I hope, congressional action. The one exception is that I was pleased that the report focuses some on the role of reauthorization. If Congress decides to reinvigorate the reauthorization process, Jonathan Adler and I have a set of proposals that suggest various nuanced, agency-specific approaches to reauthorization. We think these reauthorization proposals would allow Congress to better respond to how the executive branch and the judiciary are shaping the delegations Congress grants to federal agencies.

Instead, here I want to focus on a theme or principle that seems to be missing from current debates about regulatory reform: proportionality. This is the argument I flesh out in greater detail in the forthcoming foreword to the George Washington Law Review annual administrative law issue, which is not quite ready for public consumption. I come at these reform debates neither as a staunch anti-administrativist nor as pro-regulatory absolutist, but instead as a pragmatic formalist (or perhaps administrative pragmatist) who cares deeply about the proper separation of powers between legislative, executive, and judicial functions and also seeks to structure administrative law to maximize rule-of-law values in regulatory governance, such as consistency, efficiency, effectiveness, fairness, predictability, stability, and uniformity in federal law.

Especially in this time of flux, we should center proportionality in administrative law. The concept is simple, and obvious (yet not part of current reform debates): The more important or impactful a regulatory action, the more procedure we should require from federal agencies and the more searching review we should expect from courts. The converse is also true: For minor regulatory actions where agencies are merely filling up the details of a statutory scheme, we should deproceduralize at the agency level and expect light-touch judicial review. In between the major and minor regulatory actions, the level of agency procedures and the scope of judicial review should be calibrated, where possible, to be proportional to the importance of the regulatory action.

We have seen hints of some embrace of proportionality in recent years. The Supreme Court, for instance, has introduced a major questions doctrine, which requires a clear statement from Congress to delegate major value judgments to federal agencies. It has also focused on proportionality when it comes to judicial review of agency statutory interpretations and statutory delegations, officer status under Article II, and arbitrary-and-capricious review of agency policymaking under the Administrative Procedure Act (APA). Last Term, the Court recognized the importance of proportionality when it limited the scope of injunctive relief in Trump v. CASA and rebuffed a nondelegation doctrine challenge in FCC v. Consumers’ Research.

Within the Executive Branch, we have also seen some embrace, albeit more limited, of proportionality. For instance, in the first Trump administration, the Department of Transportation voluntarily adopted formal rulemaking for its highest-impact rules. And in the Biden administration, the Office of Information and Regulatory Affairs raised the threshold for centralized review of agency rulemaking to significant rules that have at least a $200-million-dollar impact, reducing the procedural review for less-impactful rules.

And then there is Congress. When Congress enacted the APA in 1946, it also had proportionality in mind. For instance, it calibrated rulemaking requirements with formal, trial-like procedures for the most impactful rules, a lightly proceduralized general notice and public comment approach to less-impactful rules, and no required process for interpretive guidance, policy statements, or procedural rules. That, of course, is the lost world of the APA. Over the decades, the courts have reformed rulemaking to essentially eliminate formal rulemaking and to highly proceduralize informal rulemaking.

My foreword will document potential legislative action in more detail, but one obvious way to center proportionality in the APA is to return to, and improve on, the APA’s original proportional approach to rulemaking. For the high-impact and major rules (think $1 billion and $100 million rules), Congress should require more agency procedures for rulemaking. For the former, Congress should restore the APA’s original formal, trial-like procedures. For the latter, the procedures should be somewhere in between original APA formal rulemaking and modern-day notice-and-comment rulemaking. More procedures would also be required for major agency guidance. If these reforms sound familiar, that’s because they were in the 2017 bipartisan Senate version of the Regulatory Accountability Act, which I detail here.

But Congress should not stop there. It should also calibrate procedures for rules that are less impactful. In the middle, Congress should preserve the modern-day notice-and-comment rulemaking process, with its procedures of detailed public notice and comment. For the even less-impactful rules, however, Congress should revive the original informal rulemaking process, which would just require general notice and public comment. And, of course, Congress should preserve the status quo of no process for non-major interpretative guidance, policy statements, and procedural rules. For those rules, federal agencies would be left with discretion to tailor procedures based on context-specific considerations. Similar reforms could be made to agency adjudication and enforcement activities and judicial review of agency actions.

It is time to embrace proportionality more broadly in administrative law. Such a pragmatist reform would not be unprecedented. A half century ago during the Goldberg v. Kelly due process revolution, Judge Henry Friendly delivered the Owen J. Roberts lecture at the University of Pennsylvania Law School. Entitled Some Kind of Hearing, Judge Friendly urged the adoption of a proportionality principle when it comes to the process due before the government can deprive an individual of some right or interest. He invoked Professor Bernard Schwartz’s example that requiring a predeprivation oral hearing makes no sense when the dispute is over whether someone is entitled to $17 instead of $14. One year later, in Mathews v. Elridge, the Supreme Court invoked Judge Friendly’s Some Kind of Hearing when it introduced a proportionality principle into the procedural due process doctrine.

We currently face another anti-administrativist revolution, and it is time once again to center proportionality in administrative law. The Supreme Court and the Executive Branch can embrace proportionality on their own in many respects, as I document in the forthcoming foreword. But to fully implement this vision, Congress must also get involved to modernize administrative law and recalibrate it based on proportionality.

Christopher J. Walker is a law professor at the University of Michigan.