PRACTICALLY BINDING: GENERAL POLICY STATEMENTS AND NOTICE-AND-COMMENT RULEMAKING

• 成果类型: Article
• 署名作者: Sunstein, Cass R.
• 刊物名称: ADMINISTRATIVE LAW REVIEW
• ISSN/ISSBN: 0001-8368
• 发表日期: 2016
• 页码: 491-516
• 关键词: vermont-yankee; rules

摘要

Over the last two decades, lower courts have repeatedly held that agencies must use notice-and-comment procedures before they issue purported policy statements that are Practically binding, in the sense that thy are fixed and firm. As a matter of policy, this requirement has both desirable and undesirable consequences. It increases the likelihood that agencies will benefit from public comments, but it also creates a strong incentive for agencies to speak vaguely or not to issue policy statements at all. In general, agencies should seek comments before issuing such statements, but strictly as a matter of law, the practically binding test is an unjustified departure from the best reading of the Administrative Procedure Act (APA). The Supreme Court's decision in Vermont Yankee rules that departure out of bounds. It is true that Vermont Yankee suggests an approach that would revolutionize a large number of existing doctrines and that for good reasons, the Court has declined to endorse the full Vermont Yankee-ization of administrative law. But the practically binding test is well beyond the pale.