Congress frequently gives administrative agencies a choice of several different tools—including legislative rulemaking, nonlegislative rulemaking, and adjudication—to interpret and apply the statutes that they administer. When Congress gives agencies a choice, courts rarely second-guess the agencies’ choice of policymaking tool. Rarely, that is, unless the agency chooses to interpret a statute through nonlegislative rulemaking. ...
Part II of this Article explores the variety of policymaking tools that are available to agencies, the deference generally accorded an agency’s choice of tool, and the reluctance of courts to defer when agencies choose to make policy through nonlegislative rulemaking. Part III explores Franklin’s criticism of the short cut as an alternative to the current tests used to distinguish legislative rules from nonlegislative rules. Part IV outlines Seidenfeld’s proposal to reform judicial review of nonlegislative rules to allow courts to adopt the short cut without limiting public and judicial oversight. Finally, Part V critiques the proposals of Franklin and Seidenfeld and introduces the proposal for an expansion of electronic participation in the development of significant guidance documents and a modest expansion of judicial review for nonlegislative rules.
Stephen M. Johnson, In Defense of the Short Cut, 60 Kan. L. Rev. 495 (2012).