Earlier this year my co-blogger Nick Bagley argued that there was “no harm, no foul” in the Obama Administration foregoing notice-and-comment rulemaking with respect to the executive actions on immigration. The Obama Administration provided notice, he argued, by “leak[ing] the proposal to the national media and [holding] a Rose Garden press conference.” The public had a chance to comment on the proposal and press conference, and did so publicly in blogs, op-eds, etc. The Administration, moreover, “did address, in writing, the most substantial objections to the program.”
I was not persuaded by this post at the time, and am still not today. The Administrative Procedure Act is quite clear about what is required for notice-and-comment rulemaking. (Whether notice-and-comment rulemaking is required here is a harder question, which the Court should hopefully answer later this year in United States v. Texas.) This sort of post-promulgation notice-and-comment process risks severely prejudicing the decision-making process. It seems intuitive that one is less likely to incorporate comments or suggestions on a final draft, than on a rough draft. And it’s not surprising that no such post-promulgation comments changed a word in the DACA and DAPA memoranda.
To be sure, Nick’s argument is not novel. It turns out that a substantial number of rules each year are promulgated without pre-promulgated public notice and comments and that courts have struggled with how to address those rules. Fortunately, Kristin Hickman, along with her coauthor Mark Thomson, have published a terrific article right on point. In Open Minds and Harmless Errors: Judicial Review of Post-Promulgation Notice and Comment, which was just published in the Cornell Law Review, Hickman and Thomson survey the rate of such rulemaking, how courts have responded, and how courts should respond.
The full paper is available here, and here’s a great summary from the abstract:
In 2012, the Government Accountability Office surprised many administrative law specialists by reporting that fully 35% of major rules and 44% of nonmajor rules issued by federal government agencies lacked pre-promulgation notice and opportunity for public comment. For at least most of the major rules, however, the issuing agencies accepted comments from the public after issuing the rule, and in most of those cases, the agencies followed up with new final rules, responding to comments and often making changes in response thereto. Post-promulgation notice and comment do not precisely comply with the Administrative Procedure Act, yet are arguably close enough that some courts have felt compelled to uphold them. Challenges to rules adopted in this manner have created a jurisprudential mess, as courts struggle to balance their duty to enforce the requirements of the Administrative Procedure Act with the practical realities of the modern administrative state. The sheer extent of the practice demonstrates the need for a more consistent judicial response. This Article explores the different approaches courts have taken to judicial review of post-promulgation notice and comment. The Article concludes that the all-or-nothing models embraced by some courts are doctrinally and practically untenable, but that the middle-ground alternatives employed by other courts thus far do not ensure that post-promulgation notice and comment function as an equivalent substitute for pre-promulgation procedures. The Article proposes a solution to the middle-ground problem, first by reviewing the doctrinal theory surrounding agency rulemaking and then articulating a set of factors for courts to employ in evaluating post-promulgation notice and comment case by case.