A constitutional theory of imperative participation: delegated rulemaking, citizens' participation and the separation of powers doctrine.

AuthorSteiger, Dominik
PositionContinuation of V. Delegated Rulemaking: The Theory's Litmus Test B. The Executive: Delegated Rulemaking 1. Bound and Democratic: The Character of Agencies and Rulemaking through VI. The Power of the Constitutional Theory of Imperative Participation, with footnotes, p. 35-66

b. Rules

Delegating statutes empower the executive to make rules and limits this power at the same time. (266) Rules are both prospective and general--and thus quite similar to democratic laws. (267) However, laws are only limited by the Constitution, while rules are also limited by laws. A rule is defined by 5 U.S.C. [section] 551(4) (268) as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy." (269) This definition requires differentiation between rules from laws on the one hand, and from orders and adjudications--which are defined in 5 U.S.C. [section] 551--on the other hand. (270)

The first differentiation between laws and rules is connected to the acting institution. Only Congress can enact laws. (271) Thus, every other act that is reminiscent of a law, but not enacted by Congress, cannot be a law but must be something else. Where an agency acts, it will be called a rule. (272) But the acting institution is not the only difference, only the most obvious. As 5 U.S.C. [section] 551(4) further states, rules need to be designed in a certain way, which is to "implement, interpret, or prescribe law." (273) Thus, a rule is in itself bound by law, depends upon the law, and is restricted to the confines set by the delegating law. (274) It can be described as being at a tertiary level, subordinate to the Constitution and the delegating statute. One final distinction concerns its binding effect: laws and rules are binding, except for so-called interpretative rules, which interpret other rules and offer ways and means to fulfill the binding rules. (275) But apart from that, a rule and a law share the same features in principle: they are both of general applicability (and thus concern everybody) and are of future effect (and thus prospective). (276) Famous examples of agency rules are the 1971 EPA National Ambient Air Quality Standards, which establishes six common classes of pollutants, (277) or the SEC Rule 10b-5, which prohibits insider trading. (278)

Future effects and general applicability are the main differentiating factors with regard to orders, adjudications, and rules. According to the well-known and nearly century-old Londoner/BiMetallic distinction, (279) which has been maintained by the Administrative Procedure Act ("APA"), disputes involving parties that are particular and identifiable are handled via adjudicative acts, which are based on the rule of law. (280) Such disputes can be called "bipolar" (281) and involve a "relatively circumscribed resolution of discrete claims involving identifiable firms or individuals." (282) In contrast, rules are "polycentric" (283) and involve "relatively open-ended policymaking potentially affecting and involving trade-offs among broad social groups." (284) Thus, the number of people affected differentiates between whether a certain act is a rule or an adjudicative act. Adding a time frame to that definition can further help in differentiating the two: (285) adjudicative acts are retrospective while rules--like laws--are generally prospective. (286)

c. The Democratic Nature of Rulemaking in the Administrative State

The democratic character of the executive branch became far more important owing to the rise of the administrative state. The differentiation between quasi-legislative (and therefore democratic) rules and quasi-judicial adjudicative orders, as well as the rise of the former in recent decades, is the consequence of an epic shift in administrative law not just in the United States, but worldwide. (287)

This development is owed to the ascent of the administrative state in the 1930s in the United States. (288) The administrative state is first and foremost a regulatory state--a state that moves from a world with bipolar relations to a world with polycentric relations. (289) "[A]gencies shifted, often in accordance with congressional mandates, from case-by-case adjudication to rulemaking as a more efficient, explicitly legislative procedure for implementing the new, far-reaching regulatory programs." (290)

The administration no longer acts as the transmission belt to the will of the people, transforming laws enacted by Congress into specific acts, as the world has gotten more complicated and more complex. (291) The way laws are shaped has changed deeply in the last one hundred years, from a conditional structure to a final structure: the laws often only name the goal that is to be achieved by the administration, but not the ways of getting there anymore. (292) A lack of substantive specifications from the legislature to the administration requires the administration to balance policies--"an inherently discretionary, ultimately political" function. (293) Therefore, a democratic, deliberative procedure has emerged on the administrative level. This is reflected by an increased use of rules by the administration in order to translate the will of Congress (and thus of the people) into manageable clauses. (294) "[T]he exercise of agency discretion is inevitably seen as the essentially legislative process of adjusting the competing claims of various private interests affected by agency policy." (295) This development "seeks to assure an informed, reasoned exercise of agency discretion that is responsive to the concerns of all affected interests." (296) As democracy in the administration has become more important, so has participation.

  1. Imperative Participation in Rulemaking

    Participation in executive proceedings is closely connected to the executive's adjudicative acts/rules divide and the rise of the agencies. (297) From this democracy / rule-of-law divide, it follows that participation is neither fully democratic nor fully adjudicative. (298) As rulemaking is mainly a legislative process, the democratic aspect of participation must be emphasized. But democracy can conflict with the rule of law, as the hypothetical oil pipeline example has shown. Only if this tension is resolved by the separation of powers' balancing function, does participation become fully constitutional. (299) This requires everybody to participate while the decision-making power stays with the executive. Either by electing a new leadership in Congress and/or the presidency, or via means of direct democracy (though in practice only on the state level), the people can still decide themselves on delegating laws, and thus influence the executive.

    In order to reach this democratic ideal, different forms of participation have evolved over the years. (300) They differ with regard to how they allow for participation and how they facilitate participation. (301) However, they are all in agreement that the State has to listen to and consider the will of the people, although the final decision is taken by the public organ and not by the participants. (302) Thus, all three aims of participation are furthered--democracy, individual rights, and efficiency. Further, there is congruence in the sense that everybody may participate and influence the decisionmaking process on the one hand, while on the other hand, participation is not restricted to those individuals who are directly and legally affected. This fits the constitutional theory of imperative participation: while participation in delegated rulemaking is open to everybody, as it is on the legislative level, participants' influence on the decision-making process is not as restricted as on the judicial level. (303) One can differentiate among three main forms of participation in delegated rulemaking: an informal rulemaking procedure, (304) a formal rulemaking procedure, (305) and the negotiated rulemaking procedure. (306) They all differ in the way participation affects the procedure.

    a. Informal Rulemaking Procedure

    Informal rulemaking can be regarded as the default participation procedure. (307) Its centerpiece is the notice and comment procedure, which allows everybody to comment on the proposed rules. (308) Because of the comment procedure, informal rulemaking is a "deliberative-constitutive" process, (309) and therefore, truly democratic. The notice and comment procedure starts (310) with a notice (311) of proposed rules, which is published in the Federal Register. (312) The agency can only dismiss the procedure if it is "impracticable, unnecessary, or contrary to the public interest." (313) If it does so--and in general there is some agency discretion on whether to initiate a rulemaking procedure--the public can petition the agency to start a procedure. (314) Accordingly, 5 U.S.C. [section] 553(e) prescribes that the agency shall give an interested person the right to petition for the "issuance, amendment, or repeal of a rule." (315) The agency is forced to react and give a reasons statement. (316)

    The notice must, inter alia, include "a statement of the time, place, and nature of public rule making proceedings," and "either the terms or substance of the proposed rule or a description of the subjects and issues involved." (317) Before reaching this stage, the agency will work out a proposal on its own. (318) In order to allow participation at an early stage, the (1976) Administrative Conference of the United States suggested an advanced notice of proposed rulemaking. Indeed, some delegating norms foresee this procedure specifically. (319) After the notice, the next step consists of the actual participation. Everybody who is interested is afforded the opportunity to submit data, views, or arguments according to 5 U.S.C. [section] 553(c). (320) Although it has nowhere been specified how long the period of the public comment procedure should last, agencies usually allow 30 days. (321) For "significant" rules, Executive Order 12,866--which de iure applies only to executive agencies--foresees 60 days. (322) Oral hearings are discretionary. (323) These hearings are--in contrast to trial-type proceedings--more like the ones used by...

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