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ARTICLES
A CONSTITUTIONAL THEORY OF IMPERATIVE
PARTICIPATION: DELEGATED RULEMAKING, CITIZENS’
PARTICIPATION AND THE SEPARATION OF POWERS
DOCTRINE
Dominik Steiger, New York University/Freie Universität Berlin*
ABSTRACT
There is a need for a constitutional theory of imperative
participation, as no comprehensive theory of participation exists to
date and people everywhere in the world are asking for more
influence in the exercise of public authority. The United States, as
the oldest still-functioning democracy, with its well-developed
participatory mechanisms, is the natural place to turn in order to find
such a theory. Still, the United States Constitution only tacitly
addresses participation, aside from the provisions governing the
election of Congress and the President. However, participation can
be conceptualized through the separation of powers doctrine. The
latter can be understood not only as a system of checks and balances,
but as an organizational principle balancing democracy (i.e.,
collective self-determination) and rule of law (i.e., individual selfdetermination). The United States Constitution’s implicit rules on
participation will be made explicit in this article in order to answer
the two most important questions about any public participation in
* Dr. iur., Senior Fellow Freie Universität Berlin, Emile Noël Fellow Academic Year
2014/2015, Jean Monnet Center, New York University School of Law, Deutsches Haus at NYU
DAAD Visiting Fellow, DFG-Forschungsstipendiat. The author would like to thank Jelena
Bäumler, Armin von Bogdandy, Gráinne de Búrca, Adam B. Cox, Heike Krieger, Peter
Lindseth, Christoph Möllers, John Morison, Burt Neuborne, Niels Petersen and Joseph H.
Weiler, my fellow Emile Noël Fellows Mor Bakhoum, Pietro Faraguna, Katarzyna Granat,
Vanessa Mak, Andrew Mitchell, Lucas P.M. Peeperkorn, Bilyana Petkova, Áine Ryall and
Tania Voon, and all participants of the Emile Noël workshop, especially Roxana Banu, Maria
Adele Carrai, Daniel Francis, Zsuzsanna Gedeon and Joanna Langille. Thanks also to Wiebke
Günther and Deborah Casalin.
1
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any given case. Firstly, who may participate in the exercise of public
authority? Secondly, what legal effect does the participation possess?
In this analysis, participation in the executive’s delegated
rulemaking procedures—which touches all three branches of
government—will serve as the theory’s litmus test.
I. INTRODUCTION .......................................................................... 3
II. PARTICIPATION .......................................................................... 4
A. Participation’s Legal Effect: Imperative Participation ...... 6
B. Participation’s Actors: From the People to One
Individual ........................................................................... 7
C. Participation’s Functions: Individual Rights,
Efficiency, and Democracy ................................................. 8
D. Summarizing Imperative Participation: Citizens
Partaking in All State Affairs ............................................ 9
III. SEPARATION OF POWERS ......................................................... 10
IV. CONCEPTUALIZING PARTICIPATION VIA THE SEPARATION
OF POWERS DOCTRINE: A CONSTITUTIONAL THEORY OF
IMPERATIVE PARTICIPATION .................................................... 14
V. DELEGATED RULEMAKING: THE THEORY’S LITMUS TEST ....... 17
A. The Legislature: Democratic Delegation of Powers .......... 18
1. Democratic Control: Standards of Rulemaking and
Oversight Mechanisms................................................ 19
2. Imperative Participation in the Delegation Process .. 27
B. The Executive: Delegated Rulemaking ............................. 29
1. Bound and Democratic: The Character of Agencies
and Rulemaking .......................................................... 30
2. Imperative Participation in Rulemaking ................... 39
3. Delegated Rulemaking and Participation: The
Executive and Collective Self-Determination............. 44
C. The Judiciary: Adjudicating Rulemaking and the
Rule of Law ....................................................................... 45
1. Separation of Powers and Judicial Review................. 46
2. Judicial Remedy .......................................................... 58
3. Participation on the Judicial Level: Legal Standing .. 59
4. Conclusion: Balancing Judicial Review and
Standing ...................................................................... 64
VI. THE POWER OF THE CONSTITUTIONAL THEORY OF
IMPERATIVE PARTICIPATION .................................................... 65
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I. INTRODUCTION
Participation by the people is a powerful tool which influences the
exercise of public authority within all branches of government and
may enhance the legitimacy of public authority—but only if it is done
right. Still, nearly fifty years after the beginning of the participation
debate,1 no overarching constitutional theory of participation exists
which encompasses all three branches of government and
demonstrates what is meant by “participation done right.” This
lacuna will be filled by this article, which develops a constitutional
theory of imperative participation.
There is a need for such a theory, as people everywhere in the world
are asking for more influence in the exercise of public authority.2 The
United States, as the oldest still-functioning democracy, with its welldeveloped participatory mechanisms,3 is the natural place to turn in
order to find such a theory. Like all constitutions—except the South
African one, which explicitly refers to the principle of
responsiveness4—the United States Constitution only tacitly
addresses participation, aside from the provisions governing the
election of Congress and the President.5 Still, participation is
conceptualized through the United States Constitution’s separation
of powers doctrine.6 The latter can be understood not only as a
system of checks and balances, but as the organizational principle
balancing democracy (i.e., collective self-determination) and rule of
law (i.e., individual self-determination).7
The implicit rules on participation will be made explicit in this
article in order to answer the two most important questions about
any public participation in any given case. Firstly, who may
participate in the exercise of public authority? Secondly, which legal
effect does the participation possess? In this analysis, participation
in the executive’s delegated rulemaking procedures—which touches
1 See Barbara L. Bezdek, Citizen Engagement in the Shrinking City: Toward Development
Justice in an Era of Growing Inequality, 33 ST. LOUIS U. PUB. L. REV. 3, 3 (2013).
2 See id. at 7–8, 39.
3 See Graham T. Allison, Jr. & Robert P. Beschel, Jr., Can the United States Promote
Democracy?, 107 POL. SCI. Q. 81, 90, 93 (1992).
4 S. AFR. CONST., 1996, ch. 1(d).
5 See K.K. DuViver, The United States as a Democratic Ideal?: International Lessons in
Referendum Democracy, 79 TEMP. L. REV. 821, 825–27 (2006).
6 See Glen Staszewski, Rejecting the Myth of Popular Sovereignty and Applying an Agency
Model to Direct Democracy, 56 VAND. L. REV. 395, 401–03 (2003).
7 See WILLIAM E. HUDSON, AMERICAN DEMOCRACY IN PERIL: EIGHT CHALLENGES TO
AMERICA’S FUTURE 9 (7th ed. 2013).
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all three branches of government—will serve as the theory’s litmus
test.
This article proceeds as follows: First, in an inductive overview of
participation, a constitutional understanding of imperative
participation will be developed. It will be shown that certain
structures exist with regard to who shall participate (the people, the
affected public, or one individual) and which powers flow from that
participation (decision-making, commenting, or procedureinitiating). These structures are connected to the three functions of
participation, i.e., the democratic, rule of law and efficiency
functions.8 Second, an understanding of the separation of powers
doctrine will be developed alongside the functions of participation.9
The congruence of the functions of participation and of the separation
of powers doctrine allows for the deduction of a constitutional theory
of imperative participation.10 Finally, the theory will be put to the
test by applying it to delegated rulemaking.11
II. PARTICIPATION
Much trust in the governing class has been lost in democratic
states in recent times and many citizens are turning their backs on
their states in dismay.12 There has been extensive commentary on
this development,13 and various terms have been coined to describe
this process of withdrawal from the public sphere due to the
powerlessness of the individual vis-à-vis the collective, or rather vis-
See infra Part II.
See infra Part III.
10 See infra Part IV.
11 See infra Part V.
12 See MIKE LOFGREN, THE PARTY IS OVER: HOW REPUBLICANS WENT CRAZY, DEMOCRATS
BECAME USELESS, AND THE MIDDLE CLASS GOT SHAFTED 1, 5, 6 (2012).
13 See, e.g., MICKEY EDWARDS, THE PARTIES VERSUS THE PEOPLE: HOW TO TURN
REPUBLICANS AND DEMOCRATS INTO AMERICANS, at ix (2012); JACOB S. HACKER & PAUL
PIERSON, WINNER-TAKE-ALL POLITICS: HOW WASHINGTON MADE THE RICH RICHER—AND
TURNED ITS BACK ON THE MIDDLE CLASS 152 (2010); HUDSON, supra note 7, at xiii; LAWRENCE
LESSIG, REPUBLIC, LOST: HOW MONEY CORRUPTS CONGRESS—AND A PLAN TO STOP IT 1, 9
(2011); LOFGREN, supra note 12, at 1, 5, 6; PETER MAIR, RULING THE VOID: THE HOLLOWING OF
WESTERN DEMOCRACY 2–3 (2013); THOMAS E. MANN & NORMAN J. ORNSTEIN, IT’S EVEN WORSE
THAN IT LOOKS: HOW THE AMERICAN CONSTITUTIONAL SYSTEM COLLIDED WITH THE NEW
POLITICS OF EXTREMISM 27 (2012); ROBERT C. POST, CITIZENS DIVIDED: CAMPAIGN FINANCE
REFORM AND THE CONSTITUTION 30 (2014); ROBERT B. REICH, BEYOND OUTRAGE: WHAT HAS
GONE WRONG WITH OUR ECONOMY AND OUR DEMOCRACY, AND HOW TO FIX IT, at xi (2012);
PIERRE ROSANVALLON, COUNTER-DEMOCRACY: POLITICS IN AN AGE OF DISTRUST 1 (Arthur
Goldhammer trans., 2008); NADIA URBINATI, DEMOCRACY DISFIGURED: OPINION, TRUTH, AND
THE PEOPLE 12 (2014).
8
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à-vis a few individuals.14 “[P]ost-democracy” may be the most known
among these terms.15 This powerlessness is not only perceived, but
truly exists, as recent empirical research has shown that “the
preferences of economic elites . . . have far more independent impact
upon policy change than the preferences of average citizens do.”16
It has been claimed that participation is the path to increase the
citizens’ impact on the exercise of state authority and to engage
citizens anew with their states, as well as win back constituents to
the political systems and make them truly democratic.17 Many have
pondered on these theories,18 and while participation certainly is not
the magic bullet that will carry the (democratic) day, it is of
considerable importance.19
Although much thought has been
invested in direct democracy and in participation in administrative
and judicial proceedings,20 surprisingly no (theoretical) legal thought
has been invested in analyzing participation comprehensively in all
three branches of government. As citizens demand more voice and
question the democratic legitimacy of public authority,21 it is
becoming an urgent and practical need to think about new and better
ways for citizen involvement in the exercise of state power. Following
an inductive approach, the already existing participation
opportunities need to be analyzed, as they have never been examined
in a holistic manner.
Before starting to find a pattern of participation in all three
branches, participation needs to be defined. Many definitions of
See COLIN CROUCH, POST-DEMOCRACY, at vii, viii–ix (2004).
Id. at ix.
16 Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest
Groups, and Average Citizens, 12 PERSP. ON POL. 564, 576 (2014).
17 See BENJAMIN R. BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE
117, 152 (1984); THEODORA TH. ZIAMOU, RULEMAKING, PARTICIPATION AND THE LIMITS OF
PUBLIC LAW IN THE USA AND EUROPE 230 (2001); Sherry R. Arnstein, A Ladder of Citizen
Participation, 35 J. AM. INST. PLANNERS 216, 216 (1969); Sherry R. Arnstein, A Working Model
for Public Participation, 35 PUB. ADMIN. REV. 70, 70, 73 (1975).
18 See BARBER, supra note 17, at 8.
19 See id. at 155.
20 See Glen Staszewski, Rejecting the Myth of Popular Sovereignty and Applying an Agency
Model to Direct Democracy, 56 VAND. L. REV. 395, 400 (2003) (noting how direct democracy has
been accomplished in the United States through the lawmaking powers of some administrative
agencies); Stephanie Tai, Three Asymmetries of Informed Environmental Decisionmaking, 78
TEMP. L. REV. 659, 671–72 (2005) (explaining how public participation through direct
democracy allows for interested citizens to demand judicial review of administrative actions).
21 See HUDSON, supra note 7, at 140.
14
15
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participation are sociological,22 political,23 or rights-based.24 As a
constitutional theory will be developed here, the definition of
imperative participation will ultimately be much narrower. The
United States Constitution’s main focus lies on enabling and limiting
the exercise of public authority.25 Participation will thus be
understood as citizens partaking in the exercise of public authority
where the organ addressed is legally obliged to react to the citizens’
action and must do so via a legal procedure. Participation comes in
different forms: it has different legal effects,26 different actors are
involved,27 and different functions are being fulfilled.28
A. Participation’s Legal Effect: Imperative Participation
Participation, as it is understood in this article, possesses a legal
effect that is imperative on the State.29 It will therefore be referred
to as “imperative participation.” The imperative effect of citizens’
participation can differ: direct democracy allows for legislating
directly, while voting leads to newly constituted organs.30
Participation in rulemaking, and other acts of state, forces the State
to react to and consider the participants’ submission (though not
necessarily to follow it).31 Participation in judicial matters forces the
State to activate the judicial process and to deliver a judgment
(though not to decide in favor of the plaintiff).32
In contrast, important democratic rights and forms of action, such
as freedom of speech or assembly, do not form part of this definition
of participation.33 As important as the fundamental rights to free
22 Damien Contandriopoulos, A Sociological Perspective on Public Participation in Health
Care, 58 SOC. SCI. & MED. 321, 322 (2004).
23 See ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPE AND REVIVAL OF AMERICAN
COMMUNITY 18 (2000).
24 JOANA MENDES, PARTICIPATION IN EU RULE-MAKING: A RIGHTS-BASED APPROACH 1
(2011).
25 See Stephanie Hall Barclay, Retained by the People: Federalism, the Ultimate Sovereign,
and Natural Limits on Government Power, 23 WM. & MARY BILL OF RTS. J. 257, 264–66 (2014).
26 See infra Part II(A).
27 See infra Part II(B).
28 See infra Part II(C).
29 See HUDSON, supra note 7, at 143.
30 See id. at 160, 177.
31 See HUBERT HEINELT, GOVERNING MODERN SOCIETIES: TOWARDS PARTICIPATORY
GOVERNANCE 8 (2010).
32 See id. at 9; Tai, supra note 20, at 672.
33 See JAMES S. FISHKIN, WHEN THE PEOPLE SPEAK: DELIBERATIVE DEMOCRACY AND PUBLIC
CONSULTATION 45 (2009) (exemplifying that these fundamental rights are missing from this
definition of participation).
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speech and assembly are for the democratic state,34 they do not force
the State to listen. They are the soil in which participation is rooted
and which participation needs to live and prosper—and are thus
especially protected—but they are not forms of imperative
participation.35
B. Participation’s Actors: From the People to One Individual
The actors of participation differ. The people as a whole act in
instances of representative and direct democracy.36 In contrast, in
the case of an administrative decision that, in principle, affects only
one person, e.g., any order such as a building permit or a police order,
only certain individuals participate as petitioners. The same is true
for the plaintiffs in judicial proceedings.37 In instances of public
planning, more people may participate, such as the affected public.38
In delegated rulemaking, different NGOs and experts might
participate.39 In the United States, the public may also participate
in rulemaking procedures.40
If one regards the actors on a continuum, they move gradually in
quantitative terms from everybody (i.e., the people), to a group of
people (i.e., the affected public), to just one person (i.e., the plaintiff).
In qualitative terms, this rather clear graduation becomes more
complex. For example, the people are not composed of everybody, but
only of citizens—a more and more contested principle.41 The affected
public may also include legal aliens. Plaintiffs can even be aliens not
residing within the country.42 From these qualitative observations,
it follows that a mechanical quantitative differentiation is a
generalization and simplification. However, the qualitative approach
does not contradict the quantitative approach, but actually confirms
See BURT NEUBORNE, MADISON’S MUSIC: ON READING THE FIRST AMENDMENT 98 (2015).
See id.
36 See HEINELT, supra note 31, at 9–10.
37 See CORNELIUS M. KERWIN & SCOTT R. FURLONG, RULEMAKING: HOW GOVERNMENT
AGENCIES WRITE LAW AND MAKE POLICY 167 (4th ed. 2001).
38 See HEINELT, supra note 31, at 28.
39 See id. at 11, 28.
40 See FISHKIN, supra note 33, at 76 (noting that participation should be more than just the
election of policymakers, but should also include direct policymaking).
41 See HEINELT, supra note 31, at 28; Wessel le Roux, Representative Democracy, Migration
and Residence Based Voting Rights in Post-Apartheid South Africa and Post-Unification
Germany (1990-2015), in THE END OF THE REPRESENTATIVE STATE? DEMOCRACY AT THE
CROSSROADS (Henk Botha & Nils Schaks & Dominik Steiger eds., forthcoming 2016)
(manuscript at 188, 189) (on file with author).
42 See, e.g., id. at 22.
34
35
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it in general, yet simultaneously makes it more complex in the
specifics.
C. Participation’s Functions: Individual Rights, Efficiency, and
Democracy
Lastly, the functions of participation differ. One can differentiate
three main functions of participation which determine the different
legal effects and actors, and thus serve as a switch.
First, participation protects the rule of law.43 The rule of law
concept can be understood in many ways.44 In this article, it is
understood as a broad concept, not only encompassing the primacy of
law, but also the protection of individual rights and the furthering of
individual self-determination.45
The terms will be used
interchangeably to underline the notion that the rule of law serves
individual rights and individual self-determination.
Second, participation enhances the public authority’s efficiency by
informing the competent organs via special expertise that is based on
expert knowledge and/or familiarity with the subject.46
Third, participation enhances democratic legitimacy.47 Similar to
the rule of law concept, the term democracy can be understood in
many different ways.48 In this article, democracy is also understood
as a broad concept, not only encompassing majority rule, but also
deliberative and participatory notions that allow for collective selfdetermination by the people.49
MENDES, supra note 24, at 33.
See Joana Mendes, Rule of Law and Participation: A Normative Analysis of
Internationalised Rulemaking as Composite Procedures 20 (The Jean Monnet Ctr. for Int’l &
Reg’l Econ. Law & Just., Working Paper No. JMWP 13/13, 2013).
45 Cf. Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (In Florida)?, 21
L. & PHIL. 137, 147 (2002) (showcasing the Rule of Law as being a concept riddled by legal
processes and judicial discretion, particularly in relation to the issues arising from the 2002
United States Presidential election).
46 See KERWIN & FURLONG, supra note 37, at 169; ARMIN VON BOGDANDY, GUBERNATIVE
RECHTSETZUNG 68–69 (2000).
47 Mio Fredriksson, Between Equity and Local Autonomy: A Governance Dilemma in
Swedish Healthcare, DIGITAL COMPREHENSIVE SUMMARIES OF UPPSALA DISSERTATIONS FROM
THE
FACULTY
OF
MED.
30
(2012),
http://uu.divaportal.org/smash/get/diva2:461056/FULLTEXT01.pdf.
48 CASS R. SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO 6, 7 (2001).
49 See Joshua Cohen, Democracy and Liberty, in DELIBERATIVE DEMOCRACY 185–186 (John
Elster ed., 1998); FISHKIN, supra note 33, at 45 (discussing the various avenues that citizens
can take to engage in political participation); JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS:
CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 302–03 (William Rehg
trans., MIT Press 1996) (1992); HEINELT, supra note 31, at 23. For a delineation of
participatory democracy and deliberative democracy see Antonio Floridia, Beyond Participatory
43
44
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D. Summarizing Imperative Participation: Citizens Partaking in
All State Affairs
To summarize: Participation allows the people to exert the power
to create laws or make state organs react to citizens’ action. However,
not everyone is always allowed to participate. Furthering the rule of
law, promoting democracy, and guaranteeing efficiency are the
functions of participation,50 but a tension exists between these
functions, which is the reason for involving different actors and
allowing those actors different kinds of influence on decisions.
The following hypothetical demonstrates this tension quite well: If
the affected public could decide on the building of a cross-country oil
pipeline, like the proposed and heavily disputed Keystone XL
pipeline, which would connect the tar sands oilfields of Canada to
United States refineries in the Gulf of Mexico area,51 there would
never be any pipeline, because most affected people would say
“NIMBY––Not in my backyard!” The affected public’s decision,
however, could be contrary to a law passed by Congress deciding the
pipeline would be built,52 or to a potential decision approving the
pipeline by the Environmental Protection Agency (“EPA”).
Which decision would prevail? The one of the affected public, or
the one of Congress or the EPA—organs which are both fully
legitimized by all the American people?53 Such a decision by the
affected public might also infringe upon the fundamental rights of
the companies building the pipeline. However, if the affected public
had no say whatsoever, their interests and rights would be nearly
worthless. Protests and resistance by the people would follow, and
effective enforcement might become impossible, or at least severely
hampered.
The tension thus needs to be resolved by balancing the conflicts
Democracy, Towards Deliberative Democracy: Elements of a Possible Theoretical Genealogy, 44
RIVISTA ITALIANA DI SCIENZA POLITICA 299, 305 (2014).
50 Furthermore, these three criteria are the decisive criteria for the success and survival of
liberal democracies. See FRANCIS FUKUYAMA, POLITICAL ORDER AND POLITICAL DECAY: FROM
THE INDUSTRIAL REVOLUTION TO THE GLOBALIZATION OF DEMOCRACY 25, 26–27 (2014); FRANCIS
FUKUYAMA, THE ORIGINS OF POLITICAL ORDER: FROM PREHUMAN TIMES TO THE FRENCH
REVOLUTION 15, 16 (2011).
51 David
Barer et al., What is the Keystone XL Pipeline?, STATEIMPACT,
https://stateimpact.npr.org/texas/tag/keystone-xl-pipeline/ (last visited Jan. 31, 2016).
52 Such a law regarding Keystone XL passed the House in November 2014 and was narrowly
defeated by one vote in the Senate. Bill Chappell, Senate Rejects Keystone XL Pipeline Bill, in
a Close Vote, NPR (Nov. 18, 2014, 6:20 PM), www.npr.org/sections/thetwoway/2014/11/18/365048998/senate-rejects-keystone-xl-pipeline-bill-in-a-close-vote.
53 U.S. CONST. art. I, § 1; 40 C.F.R. § 1.1 (2015).
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between democracy and the rule of law. This tension mirrors the
tension of collective (democratic) and individual (rule of law based)
self-determination, which is unraveled by the separation of powers
doctrine.54 This will also lead to a more efficient government, as the
absence of protests and resistance—or, speaking positively, the
general acceptance of majority decisions and general recognition of
individual rights—will allow for effective enforcement of government
authority. This insight with regard to the separation of powers
doctrine can be fructified by answering the questions of who may
participate and which form participation must take in a specific
situation.
III. SEPARATION OF POWERS
The three functions of participation––protection of individual
rights, guaranteeing efficiency, and enabling democracy––are
mirrored in the separation of powers doctrine, which is the decisive
constitutional norm in conceptualizing participation.55 Participation
will thus be aligned with the separation of powers doctrine. The
doctrine—which is not understood as a strict separation doctrine, but
rather as a checks and balances doctrine56—classically protects the
rule of law and preserves individual freedom by dividing public
authority into different branches and limiting their power.57 The
doctrine also enhances the public authority’s efficiency by assigning
public power not only to different organs, but to the organs that are
best equipped to execute that function.58 Often overlooked, but
54 See CHRISTOPH MÖLLERS, THE THREE BRANCHES: A COMPARATIVE MODEL OF SEPARATION
OF POWERS 51 (2013); KRISTINA ROEPSTORFF, THE POLITICS OF SELF-DETERMINATION: BEYOND
THE DECOLONISATION PROCESS 56 (2013).
See supra Part II.C.
See THE FEDERALIST NO. 47 (James Madison); Peter L. Strauss, The Place of Agencies in
Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 577–78, 616
(1984) (differentiating between: “separation of powers” (strict); “separation of functions” (less
strict and can be called a “Madisonian view”); and “checks and balances”).
57 See Myers v. United States, 272 U.S. 52, 291, 293 (1926); Bundesverfassungsgericht
[BVerfG] [Federal Constitutional Court] Dec. 17, 2013, NEUE ZEITSCHRIFT FÜR
VERWALTUNGSRECHT [NVWZ] 577 (578, 579) 2014 (Ger.); GEOFFREY R. STONE ET AL.,
CONSTITUTIONAL LAW xli, 368 (7th ed. 2013); THE FEDERALIST NO. 48 (James Madison).
58 While this is explicitly denied in Myers, 272 U.S. at 293, the U.S. Supreme Court in
Buckley v. Valeo, 424 U.S. 1, 121 (1976), refers to the effectiveness of government in the context
of the separation of powers. In United States v. Nixon, 418 U.S. 683, 707 (1974), the Supreme
Court speaks of “the constitutional balance of ‘a workable government.’” The Court in Mistretta
v. United States, 488 U.S. 361, 372 (1989), allowed for delegations because “Congress simply
cannot do its job absent an ability to delegate power under broad general directives.” See also
Opp Cotton Mills, Inc. v. Adm’r of Wage & Hour Div., 312 U.S. 126, 145 (1941) (“In an
increasingly complex society Congress obviously could not perform its functions if it were
55
56
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inherent to the second function, is the creation of organs and their
empowerment with specific competences and functions to exercise
public authority in the first place.59 As all public authority in the
three legal orders needs to be traced back to the people, the
democratic aspect is intrinsic to the separation of powers doctrine.60
It is not enough, however, that participation and separation of
powers share the same functions. The most important task is to
balance these functions. This entails assigning certain powers to
certain branches and organs in order to fulfill the promises of a
functioning and efficient state in which democracy and the rule of
law, collective and individual self-determination, individual rights,
and collective interests are all brought into equilibrium.61
In order to balance the aims of participation and determine who
may participate, and with how much power in any given case, this
article will make use of a new and important understanding of, and
insight into, the separation of powers doctrine. This insight
emphasizes that the claims of democracy and the rule of law—i.e., of
collective self-determination and of individual self-determination,
which are often said to be contradictory62—are legally unraveled in
the procedures foreseen by the separation of powers doctrine.63
The organizational principle of the separation of powers achieves
this balancing act by assigning public authority to the “proper”
branch and organ according to three criteria:64 First, is the public
authority rather bound or unbound by law? Second, does the public
authority mainly have retrospective or prospective effects? Third,
does the public authority primarily affect one individual or
obliged to find all the facts subsidiary to the basic conclusions which support the defined
legislative policy . . . .”); N.W. Barber, Prelude to the Separation of Powers, 60 CAMBRIDGE L.J.
59, 63 (2001) (explaining one purpose of the separation of powers is to promote efficiency);
STONE ET AL., supra note 57, at 368 (noting one distinct purpose of the separation powers is
efficiency); Strauss, supra note 56, at 620 (noting the effective functioning of the system of
checks and balances). Justice Jackson pleaded for a workable government, stating, “[w]hile the
Constitution diffuses power . . . to secure liberty, it also contemplates that practice will
integrate the dispersed powers into a workable government,” Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring), which was cited approvingly in
Mistretta, 488 U.S. at 381. See also id. at 383 (“In cases specifically involving the Judicial
Branch, we have expressed our vigilance against two dangers: first, that the Judicial Branch
neither be assigned nor allowed ‘tasks that are more properly accomplished by [other] branches
. . . .’”) (quoting Morrison v. Olson, 487 U.S. 654, 680–81(1988)).
59 See MÖLLERS, supra note 54, at 80.
60 Id. at 51, 80.
61 THE FEDERALIST NO. 48, supra note 57.
62 See MÖLLERS, supra note 54, at 63.
63 See id. at 108, 109.
64 Id. at 50.
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potentially everybody?
The public authority exercised by the legislature is characterized
by its low degree of legal predetermination, as it is only bound by the
Constitution;65 its temporal orientation, which is prospective;66 and
finally, the scope of its decisions, which potentially affects
everybody.67 The legislative proceeding is a mainly democratic one
and allows for collective self-determination.68
Public authority exercised by the judiciary principally affects one
person, is retrospective, and is clearly defined by law.69 Judicial
proceedings70 mainly protect the rule of law and individual selfdetermination.71 Of course, constitutional courts differ from this
analysis.72 But this is the reason their judgments and even their
existence is so disputed: they are, in a way, a foreign concept in the
court system as well as in the democratic system, protecting
democracy against itself.73 The focus on the protection of individual
self-determination might not be as strong in the United States as in
the German system, for example, with its particular emphasis on
subjective rights.74 However, the United States Supreme Court not
only held that “[i]t is emphatically the province and duty of the
judicial department to say what the law is,”75 but that “[t]he province
of the court is, solely, to decide on the rights of individuals . . . .”76
65 Id. at 80, 84; Peter L. Strauss, Was There a Baby in the Bathwater?: A Comment on the
Supreme Court’s Legislative Veto Decision, 1983 DUKE L.J. 789, 796, 798.
66 MÖLLERS, supra note 54, at 84; see also Bundesverfassungsgericht [BVerfG] [Federal
Constitutional Court] Dec. 17, 2013, NEUE ZEITSCHRIFT FÜR VERWALTUNGSRECHT [NVWZ] 577
(580) 2014 (Ger.) (explaining the legislature’s responsibility is the present, not the past);
Strauss, supra note 65, at 798 (noting the legislature’s “future effect”). In fact, the United
States Constitution forbids retroactive and individual laws. U.S. CONST. art.1, § 9, cl. 3.
67 See MÖLLERS, supra note 54, at 84.
68 See THE FEDERALIST NO. 39 (James Madison).
69 MÖLLERS, supra note 54, at 80, 89; Strauss, supra note 65, at 798.
70 Of course, individual self-determination is primarily based on a decision and on the will
of a single person. But from a legal point of view, individual self-determination necessitates
legal rights and mechanisms to protect individual self-determination. See MÖLLERS, supra note
54, at 68.
71 See id. at 95.
72 See id. at 135–36.
73 See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE
BAR OF POLITICS 1, 29 (1962); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF
JUDICIAL REVIEW 74, 106 (1980).
74 See Alexander Blankenagel, The Concept of Subjective Rights as the Focal Point of German
Administrative Law, 11 TEL AVIV U. STUD. L. 79, 80, 88 (1992).
75 City of Arlington v. FCC, 113 S. Ct. 1863, 1880 (2013) (Roberts, C.J., dissenting) (quoting
Marbury v. Madison, 5 U.S. 137, 177 (1803)).
76 Marbury, 5 U.S. at 170. See also JOSEPH VINING, LEGAL IDENTITY: THE COMING OF AGE
OF PUBLIC LAW 15 (1978) (noting the court’s role in preserving an individual’s power); Susan
Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 263 (1990) (stating the Court’s primary role
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Even if, of course, the Supreme Court articulates norms and uses its
certiorari power according to the importance of the questions before
it,77 it primarily protects individual self-determination.78
Since democracy and the rule of law are always co-existent in all
branches,79 the sliding scale character of this model must be
emphasized: Parliament also has to respect and protect individual
rights;80 court cases—de facto in civil law countries and, via
precedent, de jure in common law countries—do not only concern the
individual plaintiff.81 Still, Parliament is predominantly concerned
with the collective good and courts are predominantly concerned with
individual rights.82
The executive branch, situated in between the two other branches,
is especially “two-faced”: as a rule maker, it is close to the legislative
branch; as an adjudicator, it is close to the judiciary; and hence
mediates on a continuous and gradual scale between the two poles.
Independent from whether it acts as a rule maker or an adjudicator,
is deciding an individual’s rights); Abram Chayes, The Role of the Judge in Public Law
Litigation, 89 HARV. L. REV. 1281, 1285 (1976) (explaining that private law is based in
protecting an individual’s rights); Abram Chayes, The Supreme Court, 1981 Term: Foreword:
Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4, 46–47 (1982) (noting that a
court does not give an individual their rights, but rather one is entitled to their rights); Louis
L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff,
116 U. PA. L. REV. 1033, 1033 (1968) (identifying the individual rights and power of a plaintiff);
Robert J. Pushaw, Jr., Article III’s Case/Controversy Distinction and the Dual Functions of
Federal Courts, 69 NOTRE DAME L. REV. 447, 523 n.356 (1994) (noting that it is the Court’s
purpose to protect individual rights); Cass R. Sunstein, Standing and the Privatization of
Public Law, 88 COLUM. L. REV. 1432, 1460, 1469 (1988) (noting the role of the judicial branch
is to protect individual rights); Mark V. Tushnet, The New Law of Standing: A Plea for
Abandonment, 62 CORNELL L. REV. 663, 666 (1977) (noting that part of the judical process is
the consideration of individual rights); but see RONALD DWORKIN, TAKING RIGHTS SERIOUSLY
185 (1977); Richard H. Fallon, Jr., Marbury and the Constitutional Mind: A Bicentennial Essay
on the Wages of Doctrinal Tension, 91 CALIF. L. REV. 1, 14 (2003); Henry P. Monaghan,
Constitutional Adjudication: The Who and When, 82 YALE L. J. 1363, 1366 (1973). See RICHARD
H. FALLON, JR. ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM
72–73 (6th ed. 2009), for the overview of the law declaration model vs. the dispute resolution
model.
77 FALLON, JR. ET AL., supra note 76, at 75.
78 Gray v. Romeo, 697 F. Supp. 580, 585 (D.R.I. 1988).
79 See generally Francesca Bignami, The Administrative State in a Separation of Powers
Constitution: Lessons for European Community Rulemaking from the United States, Part
II(C)(2) (Jean Monnet Cntr. for Int’l and Reg’l Econ. Law & Justice, Working Paper, 1999),
http://www.jeanmonnetprogram.org/archive/papers/99/990501.html
(explaining
the
rulemaking process includes those branches chosen through the democratic process).
80 See Robert A. Sedler, Constitutional Protection of Individual Rights in Canada: The
Impact of the New Canadian Charter of Rights and Freedoms, 59 NOTRE DAME L. REV. 1191,
1228 (1984).
81 See Bignami, supra note 79, Part V(B).
82 See id. at Introduction, Part VIII A.
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the executive’s action is to some degree determined by a statute.83
Other than that, its exercise of public authority has different effects,
as it differs in scope, in its temporal orientation, and in the degree of
legal pre-determination.84
If the administration’s action is strictly pre-determined (leaving no
or only some discretion), retrospective (i.e., regulating a case that
originated in the past even if the act affects the future, such as the
granting of a building permit) and regulates one single case (for
example, in the case of a demolition order), then the administration
acts in the adjudicative mode.85 If the administration’s action is less
legally pre-determined, prospective,86 and concerns everybody (as in
delegated rulemaking), it rather acts in a legislative mode.87
Elements of collective self-determination in the rulemaking mode
are far more distinct than in the administration’s adjudicative
actions, but less so than in the actions of the legislature, because the
administration is bound more strictly by law.88 Elements of
individual self-determination in the administration’s adjudicative
mode are far more distinct than in the in the administration’s
rulemaking mode, but less so than in the judiciary, as there is more
discretion yielded to the administration.89
From the separation of powers point of view, delegated rulemaking
belongs primarily to the democratic sphere of collective selfdetermination, while the adjudicative mode is situated more in the
sphere of the rule of law and individual self-determination.90
IV. CONCEPTUALIZING PARTICIPATION VIA THE SEPARATION OF
POWERS DOCTRINE: A CONSTITUTIONAL THEORY OF IMPERATIVE
PARTICIPATION
The functions of participation and the functions of the separation
of powers doctrine overlap. Both are concerned with the subject
matter of public authority: the separation of powers doctrine governs
See MÖLLERS, supra note 54, at 96, 97.
See id.
85 See id. at 89–90.
86 Retrospective rules are even prohibited by the Constitution.
See generally Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208, 209 (1988) (noting that although some form of
retroactivity is permitted under the law, it is unfavored). For an overview of the U.S.
jurisprudence in this regard, see Ronald M. Levin, “Vacation” at Sea: Judicial Remedies and
Equitable Discretion in Administrative Law, 53 DUKE L.J. 291, 348 (2003).
87 See MÖLLERS, supra note 54, at 84.
88 See id. at 66, 84, 90, 100.
89 See id. at 100.
90 See id. at 66, 79, 95, 97.
83
84
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how public authority is exercised and assigned to the proper branch;91
participation is the partaking in the exercise of public authority.92
Both control and limit public authority in order to protect individual
self-determination.93 Both follow the logic of democracy and efficiency
in order to allow for collective self-determination.94 Owing to this
overlap of functions and subject matter, the fourth function of the
separation of powers doctrine—which unravels the “contradictory
claims of individual and democratic collective autonomy”95—serves
as the guiding principle in creating a constitutional theory of
imperative participation.
Participation in legislative proceedings, which enables collective
self-determination, requires the people to decide on future matters
concerning everybody.96 This is evident in instances of direct
democracy where the people—i.e., everybody—decide on general
laws.97 But it also holds true with regard to representative
democracy where a parliament, which is elected and therefore
decided upon by the people,98 decides on general laws.99 As the mode
of collective self-determination also needs to respect individual selfdetermination, the people’s laws will have to respect the rule of law
and individual self-determination.
In contrast, participation in judicial proceedings, which protect
individual self-determination, requires only one person to partake—
i.e., the person who wants to restore her or his individual selfdetermination that was impaired by the State in the past.100 Here,
the State is forced to react and render a verdict if the individual’s
rights have been affected.101 The decision-making powers remain
with the public authority and are executed strictly according to the
law, in order to respect democracy / collective self-determination.102
See THE FEDERALIST NO. 48, supra note 57.
See MÖLLERS, supra note 54, at 78–79.
93 See id. at 69, 78.
94 See id. at 66, 109; see supra notes 50, 58 and accompanying text.
95 MÖLLERS, supra note 54, at 4.
96 See id. at 66 (explaining that collective self-determination involves decision-making from
several people and can take priority over the individual’s interest).
97 Michael S. Kang, Democratizing Direct Democracy: Restoring Voter Competence Through
Heuristic Cues and “Disclosure Plus”, 50 UCLA L. REV. 1141, 1151 (2003); Daniel A. Smith, The
Voice of the Crowd – Colorado’s Initiative: Representation and the Spatial Bias of Direct
Democracy, 78 U. COLO. L. REV. 1395, 1434 (2007).
98 Frank Emmert, Rule of Law in Central and Eastern Europe, 32 FORDHAM INT’L L.J. 551,
565 (2009).
99 See id.
100 See MÖLLERS, supra note 54, at 95.
101 See id.
102 In re Enforcement of a Subpoena, 972 N.E.2d 1022, 1029 (Mass. 2012); MÖLLERS, supra
91
92
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The executive branch, with its different functions and organs,
requires a deeper analysis. As the second branch mediates on a
continuous and gradual basis between the two poles of democracy
and the rule of law, it first needs to be determined which form of selfdetermination is the focus of the particular exercise of public
authority. The “who” and the “how” of participation depends on
whether the administrative act is more legislative (i.e., a rule, and
thus more about collective self-determination) or more adjudicative
(i.e., an order, and thus more about individual self-determination).
From this theory, it follows that fewer and fewer people can
participate in administrative action as it moves on the sliding scale
from the legislative mode (which allows everybody to participate) to
the adjudicative mode (which allows only the ones whose rights have
been breached to participate). The decision-making power will
always stay with the State in order to protect individual and
collective self-determination. Still, within the discretion accorded to
the state organ, it has to consider the results of participation: the
more discretion the state organ has been accorded by the law, the
more it has to consider the results of the participation, and vice versa.
If the citizens want to decide themselves on administrative questions,
they have to convince the people to either vote for a new government,
or—if available—to decide on a law via means of direct democracy.
In short, the separation of powers doctrine serves as an
organizational principle balancing democracy (or collective selfdetermination) and the rule of law (encompassing individual rights
and thus individual self-determination) by assigning public authority
to the “proper” branch: the legislature enables collective selfdetermination, the judiciary protects individual self-determination,
and the executive is situated in between the two on a sliding scale.
From this, it follows that in legislative matters, everybody must be
able to participate and decide (elections, direct democracy); in judicial
matters, an individual must be able to participate, but the State
decides. Finally, participation in the second branch must never allow
for the public to decide, as the executive is already more rule-bound
than the legislature. At its democratic end (rulemaking) everybody
must be able to participate, at its rule of law end (adjudication) only
the affected individuals must be able to do so.
The methodological path chosen is inductive with regard to public
participation and deductive with regard to principles of democracy
note 54, at 89–90.
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and the rule of law. An inductive approach reasons from specific
events to an underlying principle.103 A deductive approach reasons
from a general principle to a specific answer.104 With the help of the
deductive approach, the constitutional theory of imperative
participation has been developed by deducing the modes of
participation from the democracy principle, the rule of law principle,
and the separation of powers doctrine. The inductive approach will
confirm that theory by showing that the way participation is already
articulated in the legal order of the United States accords to the
constitutional theory of imperative participation.
V. DELEGATED RULEMAKING: THE THEORY’S LITMUS TEST
The constitutional theory of imperative participation, outlined
above, needs to be tested thoroughly. As delegated rulemaking is
situated at the heart of the separation of powers doctrine105—the
executive acts in a quasi-legislative function106 on the basis of a
delegation by the legislature and is scrutinized by the judiciary—it
serves as the litmus test for the theory, which strives to find an
answer with regard to all three branches. A rule is, in short, a
binding government statement of general applicability and future
effect.107 It thus resembles a law, but has not been passed by the
legislature.108 This constellation therefore carries certain separation
of powers implications.
According to Article I, Section 1 of the U.S. Constitution, Congress,
as the legislature, is charged with the task of making laws.109 This
task is further refined in Article I, Section 8, which, inter alia,
contains the necessary and proper clause.110 Article II, Section 1 U.S.
Constitution entrusts the President, as the head of the executive,
with the task of taking care that these laws are faithfully executed.111
Article III of the U.S. Constitution confers on the judiciary the power
to decide cases and controversies.112 Since 1789, Congress has
103 DAVID E. GRAY, DOING RESEARCH IN THE REAL WORLD 16 (Jai Seaman et al. eds., 3rd ed.
2014).
104 Id.
105 See THE FEDERALIST NO. 48, supra note 57.
106 Humphrey’s Ex’r v. United States, 295 U.S. 602, 628 (1935).
107 5 U.S.C. § 551(4) (2014).
108 U.S. CONST. art. I, § 8, cl. 18; see § 551(4); Humphrey’s Ex’r, 295 U.S. at 628.
109 U.S. CONST. art. I, §§ 1, 8 cl. 18.
110 U.S. CONST. art. I, § 8, cl. 18; John Mikhail, The Necessary and Proper Clauses, 102 GEO.
L.J. 1045, 1058 (2014).
111 U.S. CONST. art. II, § 1, cl. 8.
112 U.S. CONST. art. III, § 2, cl. 1.
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delegated some of its power to the President and other organs of the
executive branch.113 Although delegated rulemaking is nowhere
mentioned in the Constitution, it is nevertheless accepted in
principle.114 This has been confirmed by the Supreme Court, which
watches over the legality of delegated rulemaking.115
In the following, this article will explore the legislature’s delegation
process,116 executive rulemaking,117 and judicial review function,118
and how the separation of powers doctrine steers citizens’
involvement in these processes.
A. The Legislature: Democratic Delegation of Powers
The legislature first and foremost serves democratic ends and
allows for collective self-determination.119 Like all laws, delegating
laws are prospective, general, and only bound by the Constitution.120
Participation in passing delegation laws must encompass the people,
i.e., everybody, and must allow for decision-making power.121 This
follows from the democratic character of lawmaking.
The separation of powers doctrine is the decisive constitutional
standard to be applied in regulating the delegation of powers from
Congress to the administration.122 The democratic legislature cannot
simply delegate broad powers to the executive, as this might be in
breach of the separation of powers doctrine.123 Imagine that
Congress were to delegate all lawmaking powers to the President; by
doing so, it would abolish the separation of powers doctrine, and with
it, the Constitution itself.124 In order to adhere to the separation of
113 Bowsher v. Synar, 478 U.S. 714, 753, 755–56 (1986); Constitution of the United States,
U.S. SENATE, http://www.senate.gov/civics/constitution_item/constitution.htm (last visited Feb.
02, 2015).
114 For a timeline of different phases of rulemaking, see Peter L. Strauss, From Expertise to
Politics: The Transformation of American Rulemaking, 31 WAKE FOREST L. REV. 745, 750
(1996).
115 Carrie Leonetti, Watching the Hen House: Judicial Rulemaking and Judicial Review, 91
NEB. L. REV. 72, 86 (2012).
116 See infra Part V.A.
117 See infra Part V.B.
118 See infra Part V.C.
119 See MÖLLERS, supra note 54, at 85.
120 U.S. CONST. art. I, §§ 1, 8, cl. 18; MÖLLERS, supra note 54, at 84.
121 See Strauss, supra note 114, at 748 (noting that when it comes to rulemaking power, the
people act as an external oversight).
122 John F. Manning, Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV.
1939, 1942 (2011).
123 See id. at 1944.
124 In fact, the German Enabling Act of 1933 (Ermächtigungsgesetz) foresaw exactly that
and turned Germany from a democracy to a dictatorship. See Peter L. Lindseth, The Paradox
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powers doctrine, certain delegation standards must be followed.125
Participation in the delegation process is equally governed by the
separation of powers doctrine.126 As it is the legislature—and thus
the
most
democratically-oriented
branch—that
delegates,
participation involves everybody and allows everybody to decide.127
1. Democratic Control: Standards of Rulemaking and Oversight
Mechanisms
Delegation is mentioned nowhere in the United States
Constitution. Article I of the U.S. Constitution provides that the
legislature will make laws.128 Laws are widely understood to be
binding norms of general character regulating future events, passed
by Congress, and only bound by the Constitution.129 They thus allow
for collective self-determination. Article II of the U.S. Constitution
provides that the executive will faithfully execute these laws.130
From the principle of democracy and the separation of powers
doctrine, it follows that Congress has to guide and steer the
executive.131 In order to do so, different standards and oversight
mechanisms have been employed and can be distinguished.132 The
point of departure for all research on delegation is the non-delegation
doctrine, which suggests that delegation is unconstitutional.133 Via
the intelligible principle test, the courts undertook the effort to
structure the delegation of rulemaking powers from congress to the
agencies.134 Legislative oversight by legislative veto has been limited
by the Supreme Court, but is still in use.135 Often overlooked,
Congress also possesses further instruments which provide strong
of the Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and
France, 1920s-1950s, 113 YALE L.J. 1341, 1360, 1371 (2004).
125 See infra Part V.A.1.
126 See infra Part V.A.2.
127 See infra Part V.A.2.
128 U.S. CONST. art. I, § 1.
129 See U.S. CONST. art. I, § 8, cl. 18.
130 U.S. CONST. art. II, § 1, cl. 8.
131 See, e.g., J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928) (stating
that the legislature, through the intelligible principle, can steer the executive).
132 See Mathew D. McCubbins et al., Administrative Procedures as Instruments of Political
Control, 3 J. L. ECON. & ORG. 243, 244 (1987).
133 See infra Part V.A.1.a; see e.g., Mistretta v. United States, 488 U.S. 361, 382 (1989) (“[W]e
[have] invalidated attempts by Congress . . . to reassign powers vested by the Constitution in
either the Judicial Branch or the Executive Branch.”).
134 See infra Part V.A.1.b; see e.g., J.W. Hampton & Co., 276 U.S. at 409 (showing an example
of the courts attempting to structure legislative delegation).
135 See infra Part V.A.1.c; see INS v. Chadha, 462 U.S. 919, 959 (1983); Louis Fisher, CONG.
RESEARCH SERV., RS22132, LEGISLATIVE VETOES AFTER CHADHA 6 (2005).
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oversight mechanisms.136
a. Non-Delegation Doctrine
The starting point of every inquiry into delegation is the so-called
non-delegation doctrine. It is rooted in the separation of powers
doctrine and said to prohibit the delegation of rulemaking power to
the executive.137
Supporting the claim of the existence of a non-delegation doctrine,
in 1892, the Supreme Court, without further argument, simply held
non-delegation to be “a principle universally recognized.”138
Similarly, in Youngstown Sheet and Tube Co. v. Sawyer,139 a case that
was not about delegated rulemaking in particular but about
presidential powers in general,140 the Supreme Court referred to the
vesting clauses of Article I and II of the U.S. Constitution and held
that “the framework of our Constitution, the President’s [or any other
executive branch’s] power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker.”141
On the contrary, the first delegation already took place in 1789; 142
Chief Justice John Marshall declared delegation which “fill[s] up the
details” to be “certainly” lawful;143 the Supreme Court spoke
affirmatively of the quasi-legislative function of agency activity;144
and only in two cases did the Supreme Court actually invalidate a
delegating law.145 Strikingly, these two laws were not invalidated on
the grounds of the non-delegation doctrine, but because Congress
delegated overly broad powers to the executive.146 It is thus an
See infra Part V.A.1.d.
See Mistretta v. United States, 488 U.S. 361, 382 (1989) (citing Bowsher v. Synar, 478
U.S. 714, 726 (1986)); INS v. Chadha, 462 U.S. 919, 956 (1983); N. Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 76 (1982)); Alexander Volokh, The New PrivateRegulation Skepticism: Due Process, Non-Delegation, and Antitrust Challenges, 37 HARV. J.L.
& PUB. POL’Y 931, 954 (2014).
138 Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892).
139 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
140 Youngstown, 343 U.S. at 582.
141 As Justice Black for the majority stated flatly. Id. at 587. See also Buckley v. Valeo, 424
U.S. 1, 123 (1976) (emphasizing the words of Justice Black more than two decades later)
(quoting Youngstown, 343 U.S. at 587).
142 Appropriations for the Support of Governement, ch. 23, 1 Stat. 95 (1789); Regulation of
Trade and Intercourse with the Indian Tribes, ch. 33, 1 Stat. 137 (1790).
143 Wayman v. Southard, 23 U.S. 1, 43 (1825).
144 Humphrey’s Ex’r v. United States, 295 U.S. 602, 628, 629 (1935).
145 A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935); Panama
Refining Co. v. Ryan, 293 U.S. 388, 433 (1935).
146 A. L. A. Schechter Poultry Corp., 295 U.S. at 541–42; Panama Refining. Co., 293 U.S. at
416, 418–19.
136
137
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overstatement that the doctrine “has had one good year, and 211 bad
ones (and counting).”147 Rather, the non-delegation doctrine is “no
doctrine at all.”148
The constitutionality of delegated rulemaking is not only necessary
to allow for effective and efficient exercise of public authority,149 but
is furthermore in accordance with the vision of the Founding Fathers.
Madison has already explained in The Federalist No. 47 that
separation of powers was never meant as a clear-cut separation of
either form or function.150 Rather, this doctrine allows for overlaps
and intersections.151 The United States Constitution consequently
allows Congress to delegate rulemaking power—as long as it stays
within the constitutional boundaries set by the separation of powers
doctrine.152
b. Intelligible Principle
The Supreme Court has held—though without further
elaboration—that Congress, as the lawmaker, needs to uphold its
responsibility and thus steer the administration via an intelligible
principle.153 This principle was the decisive argument in striking
down the first delegating act ever in the Panama Refining decision.154
Section 9(c) of the National Industrial Recovery Act gave the
President the power to prohibit the transport of hot oil, i.e., oil
produced in excess of state quotas, in interstate and foreign
commerce.155 As the Court could find no standard but only a
“declaration of policy” in which certain (somewhat conflicting)156
goals of the act were announced, it found the delegation too broad and
unconstitutional: “As to the transportation of oil production in excess
of state permission, the Congress has declared no policy, has
established no standard, has laid down no rule. There is no
requirement, no definition of circumstances and conditions in which
Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000).
Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2364 (2001).
149 For reasons speaking favor of the necessity of delegation, see Richard B. Stewart, The
Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1695 (1975).
150 THE FEDERALIST NO. 47, supra note 56.
151 Mistretta v. United States, 488 U.S. 361, 381 (1989).
152 See J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
153 See id.
154 Panama Refining Co. v. Ryan, 293 U.S. 388, 429–30, 433 (1935) (quoting J.W. Hampton,
Jr. & Co., at 409).
155 Id. at 406.
156 Uwe Kischel, Delegation of Legislative Power to Agencies: A Comparative Analysis of
United States and German Law, 46 ADMIN. L. REV. 213, 219 (1994).
147
148
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the transportation is to be allowed or prohibited.”157 This act was an
extreme example of the absence of any standards and “paled in
comparison (even at the time) to the vagueness associated with
countless delegations to administrative agencies.”158 But neither in
this case—nor in the Schechter decision of the same year, which was
the last delegating act ever invalidated by the Supreme Court—did
the Court positively state what the intelligible principle exactly
demands.159
In Schechter, the Supreme Court declared
unconstitutional the centerpiece of the National Industrial Recovery
Act.160 Section 3 of the Act was about “codes of fair competition”
created by a round table of union and industry representatives, which
were then to be adopted by the President in order to become
effective.161 The Supreme Court concluded that section 3:
[S]upplies no standards for any trade, industry or activity. It
does not undertake to prescribe rules of conduct to be applied
to particular states of fact determined by appropriate
administrative procedure. Instead, . . . it authorizes the
making of codes to prescribe them. For that legislative
undertaking [it] sets up no standards, aside from the
statement of the general aims of rehabilitation, correction and
expansion found in section one.162
This delegation went even further than the one in Panama
Refining, especially as it allowed for private parties to have a
considerable influence in the preparation of the rules.163
Other delegating statutes were upheld by the Supreme Court,
Panama Refining. Co., 293 U.S. at 430.
Kagan, supra note 148, at 2365–66.
159 The Supreme Court did not mention the intelligible principle but spoke of “standards”
that are not met. See KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE 176 (2nd ed.
1979). But see LOUIS L JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 60 (1965)
(finding the standards to be narrower).
160 Kischel, supra note 156, at 219–20.
161 A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 521–23 (1935).
162 Id. at 541.
163 Kagan, supra note 148, at 2365; see also STONE ET AL., supra note 57, at 425 (comparing
Pamana Refining and Schechter); ZIAMOU, supra note 17, at 55 (“After the famous Panama
Refining and Schechter cases, where the Supreme Court struck down acts of Congress for
enabling an unconstitutionally broad delegation of power by not providing sufficient standards
to limit the scope of agency discretion, they have been hesitant to invalidate statutes on
delegation grounds, thus upholding the granting of vaguely defined powers to administrative
agencies.”). The National Recovery Act of 1933 foresaw that the President was supposed to
approve the code if several criteria were met, inter alia, that (a) “no inequitable restrictions on
admission to membership” existed and, (b) that the codes were not used to get rid of
competition. A. L. A. Schechter Poultry Corp., 295 U.S. at 521 n.4; see also DAVIS, supra note
159, at 176 (“[M]ost sweeping congressional delegation of all time.”).
157
158
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including delegations that granted power to make rules “as public
convenience, interest, or necessity requires”164 or to fix prices in order
“to stabilize commodity prices, be fair and equitable, and be fixed
with due consideration to prevailing prices during a designated base
period.”165 Even statutes that authorize regulations in the “public
interest” have been found constitutional by the Supreme Court.166
The Agricultural Adjustment Act allows the Secretary of Agriculture
to make rules with regard to agricultural marketing, only requiring
that agricultural marketing should be “orderly.”167 The Patient
Protection and Affordable Care Act168 authorized different agencies
to issue “such regulations as may be necessary.”169 Neither law has
been challenged on these grounds.170
While upholding these rather broad statutes, the Supreme Court
has failed to give content and meaning to the intelligible principle.
Undertakings in the lower courts to argue that procedural safeguards
developed by the agency form part of the principle, and thus
implement a higher standard, have failed.171 In Whitman v.
American Trucking Ass’ns.,172 the Court held that the development of
procedural standards by the agency cannot cure an unlawful
delegation of Congress.173 In this decision, the Court at least gave
National Broadcasting Co. v. United States, 319 U.S. 190, 214, 220, 225, 227 (1943).
Kischel, supra note 156, at 220.
166 See, e.g., National Broadcasting. Co., 319 U. S. at 225, 226, 227 (1943) (discussing the
Federal Communications Commission’s power to regulate airwaves); New York Cent. Sec. Corp.
v. United States, 287 U.S. 12, 24, 25 (1932) (discussing Interstate Commerce Commission’s
power to approve railroad consolidations); see also Whitman v. Am. Trucking Ass’ns, 531 U.S.
457, 475 (2001) (discussing the Environmental Protection Agency’s power to regulate air
quality).
167 MAEVE P. CAREY, CONG. RESEARCH SERV., RL32240, THE FEDERAL RULEMAKING
PROCESS: AN OVERVIEW 4 (2013), https://www.fas.org/sgp/crs/misc/RL32240.pdf (referring to
the examination of the amount of regulatory discretion afforded to the agencies) (citing U.S.
GEN. ACCT. OFF., GAO/GGD-99-20, REGULATORY BURDEN: SOME AGENCIES’ CLAIMS REGARDING
LACK OF RULEMAKING DISCRETION HAVE MERIT 3 (1999), http://www.gao.gov/assets/230/2267
56.pdf).
168 The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119.
169 CAREY, supra note 167, at 4 (quoting CURTIS W. COPELAND, CONG. RESEARCH SERV.,
R41180, REGULATIONS PURSUANT TO THE PATIENT PROTECTION AND AFFORDABLE CARE ACT
(P.L. 111-148) 12 (2010), http://www.ncsl.org/documents/health/Regulations.pdf.).
170 See generally CAREY, supra note 167, at 4 (discussing how Acts, such as the Agricultural
Adjustment Act, and the Patient Protection and Affordable Care Act, grant agencies significant
discretion as to how rules are established and what they require).
171 See Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F. Supp. 737, 755
(D.C. 1971); ZIAMOU, supra note 17, at 56. Both Loving v. United States, 517 U.S. 748, 773–74
(1996) and Touby v. United States, 500 U.S. 160, 169 (1991), upheld delegation acts against
non-delegation complaints.
172 Whitman v. Am. Trucking Ass’ns., 531 U.S. 457 (2001).
173 Id. at 473. For developments up until the District of Columbia Circuit Court’s decision
in Whitman, see Cass R. Sunstein, Is the Clean Air Act Unconstitutional?, 98 MICH. L. REV.
164
165
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some structure to the principle by holding that “the degree of agency
discretion that is acceptable varies according to the scope of the
power congressionally conferred.”174 In addition, one important and
often undervalued consequence of the intelligible principle is its
interpretative effect, which leads the Supreme Court to give a narrow
interpretation to statutes in order not to be forced to invalidate
them.175
c. Legislative Veto
Other methods remain to control the administration and allow
Congress to stay true to the separation of powers doctrine while
delegating. Congress delegates rulemaking powers via laws, which
can be repealed by Congress.176 But a repeal of a law is a law in itself,
and as such, is subject to a presidential veto.177 In order to avoid the
presidential veto, the “legislative veto” was developed.178 In the
delegating statutes, the two chambers of Congress—or sometimes,
only one of the chambers or even a committee—were empowered to
veto an order or a rule made by the agency, thus taking back
Congress’ power.179 But in INS v. Chadha,180 the Supreme Court
decided that the separation of powers doctrine demands Congress
give the President the opportunity to veto a congressional act
reversing an agency order.181 That same year, the Supreme Court
extended its Chadha finding to rules as well.182 These cases sounded
“the death knell for nearly 200 other statutory provisions in which
303, 342 (1999). See also Kischel, supra note 156, at 226 (discussing various other famous cases
with regard to how the issue of delegation has been analyzed).
174 Whitman, 531 U.S. at 475 (citing Loving, 517 U.S. at 772; United States v. Mazurie, 419
U.S. 544, 556–57 (1975)). This is also true in cases in which fundamental rights are touched
upon. See Kent v. Dulles, 357 U.S. 116, 125 (1958). This can be compared to the German
Wesentlichkeitstheorie. See ZIAMOU, supra note 17, at 56.
175 See Kischel, supra note 156, at 222. The Supreme Court has read the word “significant”
into the risk requirement in the Benzene case. See Indus. Union Dep’t, AFL-CIO v. Am. Petrol.
Inst., 448 U.S. 607, 639–40 (1980).
176 See Saikrishna Bangalore Prakash, Deviant Executive Lawmaking, 67 GEO. WASH. L.
REV. 1, 23 (1998).
177 See INS v. Chadha, 462 U.S. 919, 956–57 (1983).
178 LOUIS FISHER, CONG. RESEARCH SERV., RS22132, LEGISLATIVE VETOES AFTER CHADHA 1
(2005).
179 See Hermann Pünder, Democratic Legitimation of Delegated Legislation—A Comparative
View on the American, British and German Law, 58 INT’L & COMP. L. Q. 353, 366–67 (2009).
Even if Congress has not used it quite often, the existence of it already has a controlling effect
on the Administration. See Kagan, supra note 148, at 2257.
180 Chadha, 462 U.S. 919.
181 Id. at 952, 956–58.
182 Process Gas Consumers Grp. v. Consumer Energy Council, 463 U.S. 1216 (1983).
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Congress has reserved a ‘legislative veto.’”183 Still, more than four
hundred legislative vetoes were enacted between the decision and
2005.184
Although the President proclaims them to be
unconstitutional on a regular basis, legislative vetoes have an
important impact on the agencies, as the agencies need to work with
the review committees to which the veto competence is usually
transferred.185 There is thus still a heavy impact by Congress on the
agencies in the rulemaking process.186
d. Other Congressional Oversight Mechanisms
In order to steer the administration, Congress possesses a wide set
of tools beside the ones already analyzed. Contrary to the perception
that the leeway is supposedly so wide that the agencies have even
been called a “junior-varsity congress,”187 congressional oversight
mechanisms allow for a considerable amount of control and
accountability.188 Congress can phrase its delegating laws in very
strict language;189 withhold funding if it is not content with the work
of the executive;190 or make use of appropriations riders in order to
restrict the use of funds for special purposes191 or in order to direct
the use of funds for special purposes.192 Despite the Chadha decision,
Congress can still legislatively override an agency’s decision as long
as the President does not veto it, as well as revise statutory
Chadha, 462 U.S. at 967 (White, J., dissenting).
FISHER, supra note 178, at 5.
185 Id.
186 See id. at 6.
187 Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J., dissenting).
188 See KERWIN & FURLONG, supra note 37, at 221–29 (reviewing various mechanisms
bywhich Congress maintains control); McCubbins et al., supra note 132, at 244 (arguing that
the design and structure of agencies was decisive in controlling rulemaking through Congress).
189 If Congress does not, one can even argue that a form of delegation has taken place: from
Chevron it follows that in case of ambiguity, the statute takes on the meaning that the agencies
have given to it. See Sunstein, supra note 147, at 329. This can be regarded as a case of implicit
delegation. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984);
Sunstein, supra note 147, at 329–30. Thus some voiced concern against the Chevron judgment
precisely on non-delegation grounds. See Cynthia R. Farina, Statutory Interpretation and the
Balance of Power in the Administrative State, 89 COLUM. L. REV.452, 511–12 (1989); Antonin
Scalia, Judicial Deference to Administrative Interpretations of Law, 38 DUKE L.J. 511, 519–20
(1989).
190 See Reeve T. Bull, Making the Administrative State “Safe for Democracy”: A Theoretical
and Practical Analysis of Citizen Participation in Agency Decisionmaking, 65 ADMIN. L. REV.
611, 619 (2013); Kagan, supra note 148, at 2256; see generally, 5 U.S.C. §§ 801–808 (2006)
(reviewing Congress’ review of Agency Rulemaking).
191 E. Donald Elliott, INS v. Chadha: The Administrative Constitution, the Constitution, and
the Legislative Veto, 1983 SUP. CT. REV. 125, 156, 157.
192 COPELAND, supra note 169, at 17.
183
184
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mandates.193 All agencies must also submit their rules to the United
States Government Accountability Office—both houses of Congress
can then issue a joint resolution of disapproval,194 or even require the
agency to get a positive affirmation by Congress before the rule enters
into force.195
Moreover, Congress can hold “serious”196 and
197
“embarrassing” oversight hearings, and finally block presidential
nominees, which has been called the “perhaps most effective means
of influence.”198 Although it has been argued that Congress has no
great interest in overseeing the administration,199 the opposite is
true: Congress uses its tools in such a way that the rulemaking
procedure can be called a system of “congressional dominance.”200
e. Delegating Rulemaking Powers: Some Conclusions
The most important insight is that the separation of powers
doctrine governs the delegation of powers and allows for the
delegation of rulemaking powers from the democratic legislature to
the executive. The doctrine is indeed a system of checks and
balances, not a clear-cut separation.201 The delegating laws are—like
all laws—prospective, general, and only bound by the constitution.
This shows that Congress is acting in a democratic manner and
allows for collective self-determination—not only by controlling the
administration, but also by empowering it to act and pursue the
democratic will of the people. Allowing delegation is not only
permissible but also of considerable importance in today’s
administrative state, as delegation is necessary to heighten the
state’s effectiveness and efficiency.202
193 See Bull, supra note 190, at 618–19; Elliott, supra note 191, at 156–57; Kagan, supra note
148, at 2256–57; see generally, 5 U.S.C. §§ 801–808 (2006) (reviewing Congress’ review of
Agency Rulemaking).
194 5 U.S.C. § 801(a)(1)(A), (b)(1); RICHARD S. BETH, CONG. RESEARCH SERV., RL31160,
DISAPPROVAL OF REGULATIONS BY CONGRESS: PROCEDURE UNDER THE CONGRESSIONAL REVIEW
ACT 1, 9 (2001).
195 See Elliott, supra note 191, at 157.
196 Kagan, supra note 148, at 2256.
197 Elliott, supra note 191, at 157.
198 Kagan, supra note 148, at 2256; Barry R. Weingast & Mark J. Moran, Bureaucratic
Discretion or Congressional Control?: Regulatory Policymaking by the Federal Trade
Commission, 91 J. POL. ECON. 765, 769 (1983).
199 See Kagan, supra note 148, at 2256.
200 See Weingast & Moran, supra note 198, at 767 (basing this upon empiral research). See
Elliott, supra note 191, at 156–57, for even more different means of controlling the
administration.
201 THE FEDERALIST NO. 47, supra note 56.
202 For reasons in favor of the necessity of delegation, see Stewart, supra note 149, at 1695.
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Although the underdeveloped intelligible principle and the finding
of the unconstitutionality of the legislative veto seem not to provide
a safeguard against too much delegation of powers,203 which would
run contrary to the demands of the separation of powers doctrine, the
checks against uncontrolled delegation are rather strong, and
Congress is left with ample tools in order to control the Executive.
The democratic control that Congress asserts is stronger than one
might think and is in accordance with the separation of powers
doctrine.
2. Imperative Participation in the Delegation Process
Participation in the delegation process involves everybody and
allows everybody to decide.204 This can be deduced from the
democratic character of lawmaking. Although participation in the
actual delegation process on the federal level is rather sparse,205 the
people decide on the personnel that acts in the delegation process:
Before Congress can delegate, it must be elected. In addition, the
people vote for the President, who also possesses control mechanisms
over the agencies and their rulemaking.206 Electing a President who
is in favor of deregulation, like Ronald Reagan, or in favor of
regulation, like Bill Clinton, does lead to a significant difference in
the action of the agencies.207 The first mode of imperative
participation is a representative mode based on elections of the
political personnel.
Different from this first mode, the second mode of imperative
participation on the federal legislative level is only available in
theory, but well known on the state level:208 Direct democracy allows
the people to pass delegating laws themselves.209
One can
203 See DAVID P. CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 133
(1994); KENNETH F. WARREN, ADMINISTRATIVE LAW IN THE POLITICAL SYSTEM 217 (5th ed.
2011); see generally THEODORE J. LOWI, THE END OF LIBERALISM: THE SECOND REPUBLIC OF
THE UNITED STATES 93 (2nd ed. 1979) (describing why the doctrine of delegation of power is
favored although recognized weaknesses exist).
204 See id.
205 See infra notes 208, 212–14 and accompanying text.
206 See Arthur H. Garrison, The Opinions by the Attorney General and the Office of Legal
Counsel: How and Why They are Significant, 76 ALB. L. REV. 217, 233 (2013).
207 See Kagan, supra note 148, at 2248–49.
208 See Christopher A. Coury, Direct Democracy through Initiative and Referendum:
Checking the Balance, 8 NOTRE DAME J. L. ETHICS & PUB. POL’Y 573, 573 (2014); Karen Syma
Czapanskiy & Rashida Manjoo, The Right of Public Participation in the Law-Making Process
and the Role of Legislature in the Promotion of This Right, 19 DUKE J. COMP. & INT’L L. 1, 1–2
(2008); John G. Matsusaka, Direct Democracy Works, 19 J. ECON. PERSP. 185, 185–86 (2005).
209 See id. at 186, 187.
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differentiate between a referendum, where the State asks the people
to decide on a certain legislative issue,210 and an initiative, where a
group of people ask the people to decide on a legislative issue.211
Without further delving into the state level, the existence of direct
democracy here shows that it is not just a theoretical possibility but
a constitutional reality.
In addition, a third mode of imperative participation in the
legislative process exists, but again only in theory on the federal
level. This is the right to petition and to partake in congressional
lawmaking. Although everybody can petition Congress, as enshrined
in the First Amendment, the right to petition does not form part of
imperative participation, as the Supreme Court held that “[n]othing
in the First Amendment or in this Court’s case law . . . suggests that
the rights to speak, associate, and petition require government
policymakers to listen or respond to individuals’ communications on
public issues.”212 Neither does a right to partake in congressional
lawmaking exist.213 Although the committee hearings in both the
Senate and the House allow for witnesses to state their point of view,
these witnesses need to be invited by the chair or the minority leader
to testify.214 The invitees almost always include an administration
official, and the bill’s sponsor or most important co-sponsor(s).215 In
addition, the chair invites lobbyists or local governments likely
affected by the bill.216 These hearings do not give everybody a chance
to be heard in the lawmaking process. Examples from other countries
or states demonstrate that things can be done differently. In South
Africa, citizens’ submissions in the legislative process have to be
considered.217 In Montana, everybody has the right to speak in
210 CAL. CONST. art. II, § 9(a) (West, Westlaw through Ch. 807 of 2015 Legislative Session).
A “referendum is the power of the electors to approve or reject statutes or parts of statutes
except urgency statutes, statutes calling elections, and statutes providing for tax levies or
appropriations for usual current expenses of the State.” Id.
211 CAL. CONST. art. II, § 8(a) (West, Westlaw through Ch. 807 of 2015 Legislative Session).
An “initiative is the power of the electors to propose statutes and amendments to the
Constitution and to adopt or reject them.” Id.
212 Minn. Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 285 (1984).
213 Czapanskiy & Manjoo, supra note 208, at 35.
214 CHRISTOPHER M. DAVIS, CONG. RESEARCH SERV., 98-304, HOUSE COMMITTEE HEARINGS:
ARRANGING WITNESSES 1 (2015); VALERIE HEITSHUSEN, CONG. RESEARCH SERV., 98-336
SENATE COMMITTEE HEARINGS: ARRANGING WITNESSES 1 (2015).
215
See ROGER H. DAVIDSON & WALTER J. OLESZEK, CONGRESS AND ITS MEMBERS 220 (2d
prtg. 1981).
216 See DAVIS, supra note 214, at 1; HEITSHUSEN, supra note 214, at 1.
217 Doctors for Life Int’l v. Speaker of the Nat’l Assembly 2006 (6) SA 2 (CC) at 8 para. 14 (S.
Afr.); Matatiele Mun. v. President of S. Afr. 2006 (1) BCLR 47 (CC) at 20 para. 40 (S. Afr.); see
Danie Brand, Reply: Writing the Law Democratically: A Reply to Theunis Roux, in
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congressional committees.218 This form of participation differs from
the two aforementioned modes of legislative participation in two very
important aspects: first, it is not the people as an organ that is
participating, but citizens as individuals; second, citizens cannot
decide on the issues themselves. Of course, if the citizens constitute
themselves as the people, they take up the lawmaking function,
either by voting for a new legislature or by using means of direct
democracy.219
With regard to the two last modes of imperative participation,
normative reality is obviously not in conformity with the theory.220
This is not surprising, as the inductive approach only reaches as far
as today’s representative system. But on a theoretical level, one can
deduce this mode of direct democracy from the separation of powers
and the democracy principle.
To sum it up, Congress first and foremost serves democratic ends
and allows for collective self-determination. The separation of
powers doctrine is the decisive constitutional standard to be applied
in regulating the delegation powers from the legislature to the
administration. Delegating laws—like all laws—are prospective,
general, and only bound by the Constitution. Participation in
delegation is governed decisively by the democracy principle, which
is balanced by the separation of powers doctrine with the rule of law.
Thus, participation in passing delegation laws encompasses the
people, i.e., everybody, and allows for decision-making power of the
people.
B. The Executive: Delegated Rulemaking
Now we have arrived at the heart of delegated rulemaking. The
CONSTITUTIONAL CONVERSATIONS 97, 100, 104 (Stu Woolman & Michael Bishop eds., 2008);
Barbara E. Loots, Civic Duty as the Basis for Public Participation in the Legislative Process, in
THE END OF THE REPRESENTATIVE STATE? DEMOCRACY AT THE CROSSROADS (forthcoming 2015)
(manuscript at 1–2) (on file with the author); Theunis Roux, The Principle of Democracy in
South African Constitutional Law, in CONSTITUTIONAL CONVERSATIONS, supra, at 96 n.33;
Czapanskiy & Manjoo, supra note 208, at 1.
218 Testifying Before a Committee, MONT. LEGISLATURE, http://leg.mt.gov/css/About-theLegislature/Lawmaking-Process/testify.asp (last visited Feb. 4, 2016).
Committee hearings allow you to speak your mind before the committee takes any action
and before the bill is brought to the attention of the House and Senate for debate and a
final vote. . . . [Congress is] eager to hear your thoughts and perspective. Don’t be
intimidated, and don’t let stage fright stop you from taking this opportunity to participate
in your government!
Id.
219 See HUDSON, supra note 7, at 143, 160.
220 See supra notes 208, 212 and accompanying text.
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executive serves democratic ends by allowing for collective selfdetermination on the one hand, and serves rule-of-law ends by
allowing for individual self-determination on the other hand.221
Viewed from the perspective of the separation of powers’ balancing
function, rulemaking is situated on the democratic outer rim of the
executive’s sliding scale (or continuum) from democracy to the rule of
law. The rulemaking process is the most democratic form of action
that the executive can take, but less democratic than the lawmakers’
actions. Consequently, the participation process will allow everybody
to participate—but the decision will rest with the State.
Like laws, rules are prospective, general, and bound by the
Constitution, and—in addition to general laws—by the respective
delegating laws. In addition, the agencies are bound by their
governing statutes / executive orders and Congress’ influence upon
them.222 From this and the underlying separation of powers doctrine,
it follows that the participation process in rulemaking proceedings
must accommodate the stronger impact of the rule of law: although
everybody is allowed to participate, it is the State that decides. 223
Only this construction can ease the tension between democracy and
the rule of law, balance the two principles, and lead to efficiency in
this exercise of public authority (i.e., the rulemaking process).224
1. Bound and Democratic: The Character of Agencies and
Rulemaking
The rulemaking process is the most democratic form of action in
which the executive can engage. However, the rule-of-law principle
infuses the rulemaking process. This is shown by the fact that the
agencies are more constrained than Congress and are only competent
to act in certain sectors of public life according to their governing
statutes.225 These legal constraints also materialize with regard to
the legal character of the rules.226 Therefore, rulemaking as a
democratic process will be discussed against the background of the
rise of the administrative state.227
See MÖLLERS, supra note 54, at 71, 97.
See infra Part V.B.1.
223 See, e.g., JEFFREY S. LUBBERS, A GUIDE TO FEDERAL AGENCY RULEMAKING 295 (4th ed.
2006) (explaining that the APA requires agencies to provide opportunity for written comment,
but leaves the decision of whether to even allow oral presentation to the agency).
224 See infra Part V.B.2.
225 See infra Part V.B.1.a.
226 See infra Part V.B.1.b.
227 See infra Part V.B.1.c.
221
222
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a. Institutions: Executive and Independent Agencies
Rulemaking institutions form an integral part of the second
branch, are created by either the first branch or another organ of the
second branch, and are controlled to varying degrees by organs of
both branches.228 They are legally constrained in their scope of action
by the governing statutes: for example, the mission of the
Department of Homeland Security “shall be to develop and
coordinate the implementation of a comprehensive national strategy
to secure the United States from terrorist threats or attacks”;229 the
Environmental Protection Agency (“EPA”) is competent to ensure the
“establishment and enforcement of environmental protection
standards consistent with national environmental goals”;230 and the
Federal Trade Commission is competent “to prevent persons,
partnerships, or corporations . . . from using unfair methods of
competition in commerce.”231
A second constraint might follow from the agency’s status, which is
determined according to the influence the President can legally exert
upon it.232 The latter then affects the influence that Congress can
still exert.233 The status of an agency can either be that of an
executive branch agency or an independent regulatory agency.234
While both of these types of agencies can be created by Congress or
the President,235 the President possesses different powers to direct
and influence the executive branch, while the independent regulatory
See DAVIS, supra note 159, at 3; KERWIN & FURLONG, supra note 37, at 7–8.
Exec. Order No. 13,228, 66 Fed. Reg. 51,812 (Oct. 10, 2001).
230 42 U.S.C. § 4321 (2013).
231 15 U.S.C. § 45(a)(2) (2014).
232 See Meyer v. Bush, 981 F.2d 1288, 1293 (D.C. Cir. 1993); Soucie v. David, 448 F.2d 1067,
1073 (D.C. Cir. 1971).
233 See id. at 1074.
234 See Scott F. Johnson, Administrative Agencies: A Comparison of New Hampshire and
Federal Agencies’ History, Structure and Rulemaking Requirements, 4 PIERCE L. REV. 435, 439
(2006). In addition, the President can also be the delegee of power. See ZIAMOU, supra note 17,
at 41; Kagan, supra note 148, at 2319–20. Today, delegation to the President seems uncommon,
but the first delegation ever undertaken by the first Congress delegated authority to the
President. See Act Providing for the Payment of Invalid Pensioners of the United States, ch.
24, 1 Stat. 95 (1789), Act to Regulate Trade and Intercourse with the Indian Tribes, ch. 33, 1
Stat. 137 (1790); Jeffrey S. Lubbers, The Transformation of the U.S. Rulemaking Process—For
Better or Worse, 34 OHIO N.U.L. REV. 469, 470 (2008); Sunstein, supra note 147, at 322–23.
235 William G. Howell & David E. Lewis, Agencies by Presidential Design, 64 J. POL. 1095
1098 tbl.1, 1101 (2002). About half of the 425 agencies created between 1946 and 1995 were
created by the President (including the National Security Administration and the Peace Corps)
and included more than twenty independent regulatory branches. See id. at 1096, 1097, 1098
tbl.1. As they need to be financed by Congress, the President is not politically independent
from Congress in creating agencies. See id. at 1101.
228
229
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agencies are outside of his legal influence.236 Does this difference
influence their
rulemaking powers
and/or
participation
opportunities?
Departments and the executive branch agencies237 are concerned
with specific issues such as finance or the environment. The bestknown examples—next to the departments headed by a Secretary,
such as the Department of the Treasury—are the EPA and the Food
and Drug Administration.238 They can either be created by Congress,
like the National Military Establishment (two years later renamed
the Department of Defense),239 or by the President through a
Presidential Reorganization Plan, like in the case of the EPA,240 or
through an executive order, like in the case of the United States
Department Of Homeland Security.241 Their scope of action is
restrained to the competences conferred on them by the governing
statute/order.242 In addition, the President can influence them in
different ways. Most importantly, he appoints the heads of the
agencies and numerous other leading officials, and can also remove
them without reason—which is perhaps the single most notable
difference from the independent agencies.243 The Executive Orders
236 See Humphrey’s Ex’r v. United States, 295 U.S. 602, 628 (1935); Free Enter. Fund v. Pub.
Co. Accounting Oversight Bd., 537 F.3d 667, 679 (D.C. Cir. 2008).
237 Strauss, supra note 56, at 583 (“[C]abinet agencies, independent executive agencies,
[and] independent regulatory commissions.”).
238 See Our Mission and What We Do, EPA.GOV, http://www2.epa.gov/aboutepa/our-missionand-what-we-do (last updated Sept. 29, 2015); Statement of FDA Mission, FDA.GOV,
http://www.fda.gov/downloads/aboutfda/reportsmanualsforms/reports/budgetreports/ucm2983
32.pdf (last visited Feb.. 8, 2016); What Does FDA Regulate, FDA.GOV,
http://www.fda.gov/AboutFDA/Transparency/Basics/ucm194879.htm (last updated Dec. 28,
2015).
239 National Security Act of 1947, Pub. L. No. 80-253, § 201, 61 Stat. 495, 499 (1947);
National Security Act Amendments of 1949, Pub. L. No. 81-216, § 4, 63 Stat. 578, 579 (1949).
240 Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15623 (Dec. 2, 1970), reprinted in 5
U.S.C. app. 209 (2014). A reorganization is not available to the President anymore, as the time
limit of 5 U.S.C. § 905(b) expired at the end of 1984. 5 U.S.C. § 905(b) (2014). For an overview
of the different Reorganization Statutes, see HENRY B. HOGUE, CONG. RESEARCH SERV.,
R42852, PRESIDENTIAL REORGANIZATION AUTHORITY: HISTORY, RECENT INITIATIVES, AND
OPTIONS FOR CONGRESS 4 tbl.1 (2002).
241 Exec. Order No. 13,228, 3 C.F.R. § 796 (2002). Because of the Reorganization Act of 1977,
the creation of executive agencies might be unconstitutional. See Jeremiah Goulka & Michael
A. Wermuth, The Law and the Creation of a New Domestic Intelligence Agency in the United
States, in THE CHALLENGE OF DOMESTIC INTELLIGENCE IN A FREE SOCIETY: A
MULTIDISCIPLINARY LOOK AT THE CREATION OF A U.S. DOMESTIC COUNTERTERRORISM
INTELLIGENCE AGENCY 105, 110–11 (Brian A. Jackson ed., 2009).
242 See, e.g., Reorganization Plan No. 3 of 1970, 5 U.S.C. App. at 212 (describing the roles
and functions of the then-proposed EPA); Humphrey’s Ex’r v. United States, 295 U.S. 602, 628
(1935) (describing the role of the Federal Trade Commission).
243 See Morrison v. Olson, 487 U.S. 654, 689–90 (1988); Bowsher v. Synar, 478 U.S. 714, 722–
23 (1986); Humphrey’s Ex’r, 295 U.S. at 631–32; Myers v. United States, 272 U.S. 52, 163–64
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No. 12,291244 and 12,866245 allowed Presidents Reagan and
Clinton,246 respectively, to gain far more oversight over the executive
agencies, and thus centralized control over rulemaking.247 These
orders, of which the main rules are still in force today, installed a
system of review through the Office of Information and Regulatory
Affairs (“OIRA”), which was placed within the Office of Management
and Budget.248 This office reviews rules and makes changes,
sometimes substantial in nature.249
Independent regulatory agencies seem to be very similar to the
executive agencies, as both are more rule-bound than Congress250 and
concerned with specific issues.251 The first “independent” agency was
the Interstate Commerce Commission, founded in 1887.252 Congress
set up the Commission and gave it, inter alia, the “authority to
inquire into the management of the business of all common carriers
subject to the provisions of [the Interstate Commerce Act].”253
(1926).
244 Exec. Order No. 12,291, 3 C.F.R. § 127 (1982). For executive orders, see ZIAMOU, supra
note 17, at 75 n.253. They are constitutional, as decided in two court cases. Chevron U.S.A,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865–66 (1984); Sierra Club v. Costle, 657 F.2d
298, 408 (D.C. Cir. 1981).
245 Exec. Order No. 12,866, 3 C.F.R. § 638 (1993).
246 3 C.F.R. § 127; 3 C.F.R. § 638.
247
See 3 C.F.R. § 127; 3 C.F.R. § 638; see Exec. Order No. 13,422, 3 C.F.R. § 191 (2008);
Exec. Order No. 13,563, 3 C.F.R. § 215 (2012).
248 See, e.g., 3 C.F.R. § 638.
249
James F. Blumstein, Regulatory Review by the Executive Office of the President: An
Overview and Policy Analysis of Current Issues, 51 DUKE L.J. 851, 858–59 (2001); Kagan, supra
note 148, at 2277–78; Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State,
62 U. CHI. L. REV. 1, 3 (1995); Wendy Wagner, The Participation-Centered Model Meets
Administrative Process, 2013 WIS. L. REV. 671, 688.
250 See Paperwork Reduction Act of 1980, 44 U.S.C. § 3502(5) (2013) for an overview:
[T]he term “independent regulatory agency” means the Board of Governors of the Federal
Reserve System, the Commodity Futures Trading Commission, the Consumer Product
Safety Commission, the Federal Communications Commission, the Federal Deposit
Insurance Corporation, the Federal Energy Regulatory Commission, the Federal Housing
Finance Agency, the Federal Maritime Commission, the Federal Trade Commission, the
Interstate Commerce Commission, the Mine Enforcement Safety and Health Review
Commission, the National Labor Relations Board, the Nuclear Regulatory Commission,
the Occupational Safety and Health Review Commission, the Postal Regulatory
Commission, the Securities and Exchange Commission, the Bureau of Consumer Financial
Protection, the Office of Financial Research, Office of the Comptroller of the Currency, and
any other similar agency designated by statute as a Federal independent regulatory
agency or commission.
Id.
251 See, e.g., Reorganization Plan No. 3 of 1970, 5 U.S.C. app. 209, 212 (2014).
252 ZIAMOU, supra note 17, at 53; see Interstate Commerce Act of 1887, ch. 104, § 11, 24 Stat.
379, 383 (1887).
253 Interstate Commerce Act of 1887 § 12. This section also provides:
[T]he Commission hereby created shall have authority to inquire into the management of
the business of all common carriers subject to the provisions of this act, and shall keep
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Rulemaking was not mentioned in that very first statute setting up
an agency. This is different nowadays—for example, the Federal
Trade Commission in its governing statute is explicitly endowed with
the power “to make rules and regulations for the purpose of carrying
out the provisions of this subchapter.”254 Other examples include the
Federal Energy Regulatory Commission, the Nuclear Regulatory
Commission,255 the Federal Communications Commission, and the
Occupational Safety and Health Review Commission.256 They are all
endowed with certain competences identified in the governing
statutes, thus constraining their powers.257 Different from the
executive agencies, the President’s control is quite limited.258 He may
name the agencies’ head(s), but otherwise the agencies cannot be
legally steered by the President’s Office of Management and
Budget.259 The President’s executive orders also do not apply to them
de iure260 and their leading officers cannot be fired by the President
at will.261 The President thus has no legal power to supervise and
control the agencies’ decisions.262 However, the independent agencies
itself informed as to the manner and method in which the same is conducted, and shall
have the right to obtain from such common carriers full and complete information
necessary to enable the Commission to perform the duties and carry out the objects for
which it was created; and for the purposes of this act the Commission shall have power to
require the attendance and testimony of witnesses and the production of all books, papers,
tariffs, contracts, agreements, and documents relating to any matter under investigation,
and to that end may invoke the aid of any court of the United States in requiring the
attendance and testimony of witnesses and the production of books, papers, and
documents under the provisions of this section.
Id. See ZIAMOU, supra note 17, at 53.
254 15 U.S.C. § 46(g) (2013).
255 42 U.S.C. § 5841 (2013); 42 U.S.C. § 7134 (2013).
256 29 U.S.C. §§ 656(a), 661(a) (2013); 47 U.S.C. § 151 (2013). However, the Occupational
Safety and Health Administration would be an executive agency. John F. Manning,
Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96
COLUM. L. REV. 612, 630 n.106 (1996). Both OSHA and OSHRC are placed in the Department
of Labor. Id.
257 See 29 U.S.C. § 661(g); 42 U.S.C. §§ 5841, 7134; 47 U.S.C. § 151.
258 See Peter L. Strauss & Cass R. Sunstein, The Role of the President and OMB in Informal
Rulemaking, 38 ADMIN. L. REV. 181, 185–86 (1986).
259 See id. at 185, 187, 199 n.50.
260 See William P. Skladony, Executive Order 11,246: Does it Apply to Federal Deposit
Insurance?, 2 ANN. REV. BANKING L. 213, 219 (1983). Although there always have been efforts
to do so, the latest Obama Executive Order on Delegated Rulemaking urged the independent
agencies to follow the same proceedings as those set up for executive agencies. Exec. Order No.
13,579, 76 Fed. Reg. 41,587, 41,587 (2011).
261 See Humphrey’s Ex’r v. United States, 295 U.S. 602, 631–32 (1935); Pünder, supra note
179, at 359–60. Furthermore, the President has only a say in appointing the Commissioner
but nobody else. See Strauss, supra note 56, at 589.
262 See STONE ET AL., supra note 57, at 437. However, independent agencies usually also
follow President’s orders directed to executive agencies: “they have participated in the
Regulatory Council, publish regular agendas of rulemaking, are attentive to White House
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are not as independent as one might think; the President still
possesses political means of controlling the independent regulatory
agencies in a way similar to the executive agencies.263 “The
characteristics of the oversight relations of President and Congress
with ‘executive’ and ‘independent’ agencies owe as much (or more) to
politics as to law.”264
To sum up, all agencies are created by a governing statute/order
which regulates their field of action and yields them certain
competences. Within this field, the agencies act with their governing
statutes limiting them. However, the institutional setup, i.e.,
whether the agency is constructed as an independent or an executive
agency, does not tell us much about the legal constraints on
rulemaking or on participation therein, but only something about the
legal—not practical—influence the President wields.265
Legal
constraints on rulemaking and participation are rather found in the
statutes that delegate lawmaking functions to the agencies.
b. Rules
Delegating statutes empower the executive to make rules and
limits this power at the same time.266 Rules are both prospective and
inquiries about their progress, and otherwise behave as if they were in fact subject to the
discipline from which they have been excused.” Strauss, supra note 56, at 593. Thus all
Supreme Court decisions concerned with agencies have pondered thoroughly on separation of
powers issues. See Morrison v. Olson, 487 U.S. 654, 675–76 (1988); Bowsher v. Synar, 478 U.S.
714, 722–23 (1986); Wiener v. United States, 357 U.S. 349, 351–52 (1958); Humphrey’s Ex’r,
295 U.S. at 629–30; Myers v. United States, 272 U.S. 52, 161 (1926). See also Strauss, supra
note 56, at 609 (giving an overview of separation of powers issues).
263 See id. at 583.
264 Id.; see also Philip J. Harter, Executive Oversight of Rulemaking: The President Is No
Stranger, 36 AM. U.L. REV. 557, 565, 566 (1987) (discussing the President’s relationship with
agencies); Kagan, supra note 148, at 2288 (arguing that President Clinton included the
independent agencies in his Executive Order No. 12,866 and subjected “the independents to
the regulatory planning process” and oversight); Strauss, supra note 65, at 797 (discussing the
President’s powers). Furthermore, for the executive agencies, the President assumed that he
had the final word in the decision-making process, which he inter alia showed by issuing
frequent directives. See Kagan, supra note 148, at 2290.
265 See id. at 2360, 2362.
With regard to participation, and thus, the most important
influence for the purposes of this paper: “There is little reason to think, however, that
presidential administration changes fundamentally the ability of interest groups to provide
effective input within the formal (though nominally ‘informal’) process of notice-and-comment.”
Id. at 2360. “[A]n active presidential role in agency rulemaking, however exercised, in no way
interferes with the function of the participatory process in ensuring an adequate record for
judicial review.” Id. at 2362.
266 See, e.g., Strauss & Sunstein, supra note 258, at 185, 187 (noting that the President only
has some powers over agencies).
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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. § 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. § 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. § 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
See KERWIN & FURLONG, supra note 37, at 6.
5 U.S.C. § 551(4) (2014).
269 Id.
270 Id. § 551(6)–(7) (“‘[O]rder’ means the whole or a part of a final disposition, whether
affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than
rule making but including licensing. ‘[A]djudication’ means agency process for the formulation
of an order.”).
271 U.S. CONST. art. I, §§ 1, 8, cl. 18.
272 5 U.S.C. § 551(4). The Supreme Court has held that:
Article I, § 1, of the Constitution vests “all legislative Powers herein granted . . . in a
Congress of the United States.” This text permits no delegation of those powers. [W]e
repeatedly have said that when Congress confers decision-making authority upon
agencies, Congress must “lay down by legislative act an intelligible principle to which the
person or body authorized to [act] is directed to conform.”
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (citations omitted) (first citing
Loving v. United States, 517 U.S. 748, 771 (1996); id. at 776–77 (Scalia, J., concurring); and
then quoting J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). But see
Whitman, 531 U.S. at 488 (Stevens, J., concurring) (lamenting that the Court pretends that
rulemaking is not lawmaking); INS v. Chadha, 462 U.S. 919, 953 n.16 (1983) (quoting
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)) (“the President's power to
see that the laws are faithfully executed refutes the idea that he is to be a lawmaker”).
273 5 U.S.C. § 551(4).
274 See, e.g., Strauss, supra note 114, at 747 (discussing how a legislature directs agencies
via law to make rules for specific issues).
275 Id. at 746, 749.
267
268
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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
276 AMERICAN BAR ASSOCIATION, A GUIDE TO FEDERAL AGENCY ADJUDICATION: SECTION OF
ADMINISTRATIVE LAW AND REGULATORY PRACTICE 6 (Michael Asimow ed., 2003); MÖLLERS,
supra note 54, at 84; see KERWIN & FURLONG, supra note 37, at 6. Although § 551(4) of the APA
also speaks of “particular applicability,” this will be of no further concern. 5 U.S.C. § 551(4).
The qualification of particular applicability can be understood as still referring to general rules,
but those which are not as wide. Furthermore, the Administrative Conference of the United
States, as well as the American Bar Association, have proposed to eliminate the word
“particular.” AMERICAN BAR ASSOCIATION, supra, at 6 n.30.
277 See Sunstein, supra note 173, at 310, 321.
278 See Matthew P. Wynne, Note, Rule 10B-5(B) Enforcement Actions in Light of Janus:
Making the Case for Agency Deference, 81 FORDHAM L. REV. 2111, 2117–18, 2119 (2013).
279 Kagan, supra note 148, at 2362; see Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239
U.S. 441, 445 (1915); Londoner v. Denver, 210 U.S. 373, 384 (1908).
280 Kagan, supra note 148, at 2362 n.435 (referring to § 554 which requires trial-type
proceedings in adjudications).
281 Richard A. Nagareda, Comment, Ex Parte Contacts and Institutional Roles: Lessons from
the OMB Experience, 55 U. CHI. L. REV. 591, 597 (1988).
282 Kagan, supra note 148, at 2363.
283 See Lon Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 393–94
(1978).
284 Kagan, supra note 148, at 2363; see Peter L. Strauss, Revisiting Overton Park: Political
and Judicial Controls over Administrative Actions Affecting the Community, 39 UCLA L. REV.
1251, 1257 (1992).
285 See ZIAMOU, supra note 17, at 6, 7 (noting the relationship of a time frame, specifically,
a prospective one).
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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, farreaching 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
286 Id.; William V. Luneburg, Retroactivity and Administrative Rulemaking, 1991 DUKE L.J.
106, 106.
287 See, e.g., Benedict Kingsbury, et al., The Emergence of Global Administrative Law, 68 L.
CONTEMP. PROBS. 15, 31–32 (2005) (noting changes in administrative law and efforts to
regulate administrative law on a worldwide level in recent decades); see also Reuel E. Schiller,
Rulemaking’s Promise: Administrative Law and Legal Culture in the 1960s and 1970s, 3 ADMIN.
L. REV. 1139, 1139, 1144–45 (2001) (discussing the increased use of rulemaking by agencies
since the late 1960s in the United States).
288 See Bruce M. Kramer, Federal Legislative and Administrative Regulation of Hydraulic
Fracturing Operations, 44 TEX. TECH. L. REV. 837, 838 (2012); Richard B. Stewart,
Administrative Law in the Twenty-First Century, 78 N.Y.U. L. REV. 437, 440–41 (2003).
289 See Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in
Contemporary Legal Thought, 89 MINN. L. REV. 342, 344 (2004); Strauss, supra note 284, at
1257.
290 Stewart, supra note 288, at 442; see also Stewart, supra note 149, at 1673–74 (explaining
the traditional model of case-by-case adjudication by agencies). According to Stewart, this has
led to a transformation of the typical administrative model, moving away from the mere
“protection of private autonomy [to] the provision of a surrogate political process to ensure the
fair representation of a wide range of affected interests in the process of administrative
decision.” Id. at 1670.
291 Id. at 1684.
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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.
2. 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
292 See, e.g., Edward L. Rubin, Law and Legislation in the Administrative State, 89 COLUM.
L. REV. 369, 411, 414–15 (1989) (discussing the greater adaptability of and shift towards goaloriented laws, rather than laws that specify techniques to be used); see Jan S. Oster, The Scope
of Judicial Review in the German and U.S. Administrative Legal System, 9 GERMAN L.J. 1267,
1270 (2008) (discussing the difference between final and conditional structures of laws).
293 Stewart, supra note 149, at 1684.
294 See Schiller, supra note 287, at 1145, 1147, 1148, 1149.
295 Stewart, supra note 149, at 1683.
296 Stewart, supra note 288, at 442.
297 See supra notes 83–90 and accompanying text.
298 See supra notes 83–90 and accompanying text.
299 See, e.g., Harold Feld, Saving the Citizen Suit: The Effect of Lujan v. Defenders of Wildlife
and the Role of Citizen Suits in Environmental Enforcement, 19 COLUM. J. ENVTL. L. 141, 146–
47, 148 (1994) (explaining that citizen participation through the citizen suit regarding issues
pertaining to the Endangered Species Act struck a balance between Congressional action and
democracy).
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(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
300 See, e.g., Negotiated Rulemaking Act of 1990, Pub. L. No. 101-648, 104 Stat. 4969
(developing a framework for Federal agency conduct of negotiated rule creation); Toxic
Substances Control Act, Pub. L. No. 94-469, 90 Stat. 2003 (1976) (codified as amended at 15
U.S.C. §§ 2601–2692 (2013)) (requiring testing and use restrictions on specific chemicals in
order to protect human and environmental health); Consumer Product Safety Act, Pub. L. No.
92-573, 86 Stat. 1207 (1972) (codified as amended at 15 U.S.C. §§ 2051–2084 (2014)) (protecting
consumers from injuries resulting from hazardous products where the risk is unreasonable);
Federal Advisory Committee Act, Pub. L. No. 92-463, 86 Stat. 770 (1972) (establishing a system
to govern the creation of executive branch advisory committees); Occupational Safety and
Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1590 (codified as amended at 29 U.S.C. §§ 651–
678 (2013)) (establishing a framework for people to participate in rulemaking regarding safe
and healthy working conditions); Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat.
237 (1946) (governing the way federal administrative agencies can establish or propose
regulations).
301 See Negotiated Rulemaking Act of 1990 § 584; Toxic Substances Control Act § 21;
Consumer Product Safety Act § 7; Federal Advisory Committee Act § 10; Occupational Safety
and Health Act of 1970 § 6; Administrative Procedure Act § 4.
302 See Negotiated Rulemaking Act § 584(a)(7); Toxic Substances Control Act § 21(b)(2);
Consumer Product Safety Act § 7(3)(B); Federal Advisory Committee Act, § 10(3); Occupational
Safety and Health Act § 6(b)(1); Administrative Procedure Act § 4(d).
303 See, e.g., Administrative Procedure Act, § 4 (noting that any interested person can
participate, and participation is therefore open to everyone); Czapanskiy & Manjoo, supra note
208, at 1–2, 2 n.2 (discussing the lack of a required mechanism for discussion between
legislative leaders and the public, but also Congress’s custom of open hearings); William G.
Young & Jordan M. Singer, Bench Presence: Toward a More Complete Model of Federal District
Court Productivity, 118 PENN ST. L. REV. 55, 85 (2013) (describing public participation in the
judicial process through jurors).
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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
310
democratic. The notice and comment procedure starts
with a
notice311 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. § 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
See infra Part V.B.2.a.
See infra Part V.B.2.b.
306 See infra Part V.B.2.c.
307 Catherine Donnelly, Participation and Expertise: Judicial Attitudes in Comparative
Perspective, in COMPARATIVE ADMINISTRATIVE LAW 357, 358 (Susan Rose-Ackerman & Peter L.
Lindseth eds., 2010); Robert W. Hamilton, Procedures for the Adoption of Rules of General
Applicability: The Need for Procedural Innovation in Administrative Rulemaking, 60 CALIF. L.
REV. 1276, 1276 (1972). See E. Donald Elliott, Re-Inventing Rulemaking, 41 DUKE L.J. 1490,
1492 (1992) (critiquing informal rulemaking and arguing that the notice and comment
procedure is only good in order to compile a record for the judiciary). Elliott prefers to get rid
of public participation and would like to focus on representation. Id. at 1495–96.
308 See Hamilton, supra note 307, at 1276.
That all can partake makes it the most
“democratic procedure.” KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY
INQUIRY 66 (1969).
309 See ELIZABETH FISHER, RISK REGULATION AND ADMINISTRATIVE CONSTITUTIONALISM 33
tbl.1, 95 (2007).
310 For a discussion on the timing of the notice procedure, see Vermont Yankee Nuclear
Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 539–49 (1978).
311 For the necessary information which needs to be included in the notice, see United States
v. Novia Scotia Food Prods. Corp., 568 F.2d 240, 251 (2d Cir. 1977).
312 About the Federal Register, NATIONAL ARCHIVES, http://www.archives.gov/federalregister/the-federal-register/about.html (last visited Feb. 09, 2016).
313 5 U.S.C. § 553(b)(3)(B) (2014).
314 Royal C. Gardner, Public Participation and Wetlands Regulation, 10 UCLA J. ENVTL. L.
& POL’Y 1, 21 (1991).
315 5 U.S.C. § 553(e) (2014).
316 5 U.S.C. § 555(e).
304
305
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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. § 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 legislatures.324
After the input has been gathered, it needs to be considered by the
agency,325 which requires giving “good faith attention” to the
comments.326 This is the centerpiece of the deliberative and
democratic approach of agency rulemaking. The deliberations or
meetings327 of the independent regulatory commissions are usually
public, as foreseen by the Government in the Sunshine Act, a
“showpiece of administrative democracy.”328 The courts have argued
5 U.S.C. § 553(b)(1), (3).
See, e.g., 15 U.S.C. § 57a(b)(2)(A) (2014) (requiring proposed rulemaking).
319 Id.; 42 U.S.C. § 6393(a)(2)(A) (2014).
320 5 U.S.C. § 553(c).
321 CAREY, supra note 167, at 6.
322 Id. at 6 n.19; see supra notes 259–61 and accompanying text.
323 5 U.S.C. § 553(c). Sometimes oral hearings are required by some statutes. See, e.g.,
Hamilton, supra note 307, at 1318 (referring to the National Gas Pipeline Safety Act of 1968).
324 Neil D. McFeeley, Note, Judical Review of Informal Administrative Rulemaking, 1984
DUKE L.J. 347, 349.
325 5 U.S.C. § 553(c); see also ZIAMOU, supra note 17, at 71 (noting that the agency will
consider all relevant material).
326
Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 554 (9th Cir. 1977); see 40 C.F.R.
§ 1503.4(a) (2015).
327 See 5 U.S.C. § 552b(a)(2) (2014) (giving a definition of meeting).
328 ALFRED C. AMAN, JR. & WILLIAM T. MAYTON, ADMINISTRATIVE LAW 677, 688 (3d ed.
2014). Further amendments to the APA that helped “to define and structure rulemaking
procedures so that the process is fair to the citizenry” are the Freedom of Information Act,
Privacy Act, Negotiated Rulemaking Act, and the Federal Advisory Committee Act. WARREN,
supra note 203, at 204; see ZIAMOU, supra note 17, at 72. The Regulatory Flexibility Act, the
Unfunded Mandates Reform Act, the National Environmental Policy Act of 1969, and the
Paperwork Reduction Act “did not change the essential procedures that rulemaking agencies
317
318
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that the “significant comments”329 or “comments of cogent
materiality”330 have to be considered, but not all arguments.331 After
this deliberative process has taken place, the agency must
incorporate a concise general statement of the adopted rule’s basis
and purpose.332 This general statement, which used to be quite short,
has evolved into a rather lengthy rulemaking record which includes
“notice, comments and documents submitted by interested persons,
transcripts, other factual information considered, reports of advisory
committees, and agency’s concise general statement or final order.”333
Thus, everybody possesses influence and voice—not just some
special interest groups. The agency must deliberate on the comments
and consider them. Still, the decision stays with the agency. This is
as democratic as it can get inside the second branch.
b. Formal Rulemaking
Formal rulemaking is regulated by 5 U.S.C. §§ 556 and 557 and
requires trial-type hearings.334 Its determinations are recordbased.335
By allowing the submission of evidence and arguments, the
examination and cross-examination of witnesses, factfindings and the compilation of a record, trial-type hearings
are ideal for exposing in detail the advantages and
disadvantages of an issue and permitting the active
involvement of the parties. On the other hand, they tend to
be costly, time-consuming and unsuitable for the resolution of
complex issues.336
employed as much as they required agencies to consider certain specific consequences of
proposed rules when making their own evaluations.” ZIAMOU, supra note 17, at 72–73.
329 Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 394 (D.C. Cir. 1973) (“[C]omments
must be significant enough to step over a threshold requirement of materiality before any lack
of agency response or consideration becomes of concern.”).
330 United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2d Cir. 1977) (“It is
not in keeping with the rational process to leave vital questions, raised by comments which are
of cogent materiality, completely unanswered.”).
331 See id. (citing Auto. Parts & Accessories Ass’n v. Boyd, 407 F.2d 330, 338 (D.C. Cir.
1968)).
332 Id. (citing Auto. Parts & Accessories Ass’n v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968)).
333 Philip J. Harter, Negotiating Regulations: A Cure for Malaise, 71 GEO. L.J. 1, 14 n.77
(1982).
334 Hamilton, supra note 307, at 1277.
335 CAREY, supra note 167, at 5 (noting that trial-type hearings are always necessary when
a statute requires rules be made on the record). See also United States v. Florida E. Coast Ry.
Co., 410 U.S. 224, 241 (1973).
336 ZIAMOU, supra note 17, at 163.
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Because of this inability to deal with complex issues, formal
rulemaking is said to be “dead.”337 However, as in informal
rulemaking, everybody possesses influence, and democratic aims are
being followed. Still, the decision remains with the agency.
c. Negotiated Rulemaking
Negotiated rulemaking takes place prior to the publication of a
notice of proposed rulemaking.338 It might be applied in cases where
“a limited number of identifiable interests . . . will be significantly
affected by the rule,” and “there is a reasonable likelihood that a
committee can be convened with a balanced representation of persons
who can adequately represent” the said interests.339 The people who
are significantly affected will be represented.340 Representatives of
various interest groups, together with the agency, negotiate the
text.341 The final text will be decided upon solely by the agency.342
This participation mode does not seem to fit the theory, as not
everybody can participate, but only a selected few.343 However, a
notice and comment procedure will follow the negotiations.344
3. Delegated Rulemaking and Participation: The Executive and
Collective Self-Determination
Delegated rulemaking, and participation therein, first and
foremost serve democratic ends and are ruled by the separation of
powers doctrine.345 As delegated rulemaking belongs mainly to the
337 See Pünder, supra note 179, at 354–55. For a discussion on why formal rulemaking is
considered dead, see Vermont Yankee Nuclear Power Corp v. Nat. Res. Def. Council, 435 U.S.
519, 525 (1978) (striking down so-called hybrid rulemaking, an intersection between formal
and informal rulemaking); WARREN, supra note 203, at 201 (explaining that very few statutes
require formal rulemaking like the Food, Drug and Cosmetic Act of 1938, 21 U.S.C., § 371
(e)(3)); ZIAMOU, supra note 17, at 71–72 (discussing the holding of the Vermont Yankee case).
338 See 5 U.S.C. § 563(a)(5) (2014).
339 Id. § 563(a)(2)–(3).
340 See WARREN, supra note 203, at 221; ZIAMOU, supra note 17, at 103.
341 Id. at 103.
342 Statement on Signing the Negotiated Rulemaking Act of 1990, GEORGE BUSH
PRESIDENTIAL LIBRARY & MUSEUM (Nov. 29, 1990), http://bush41library.tamu.edu/archives/
public-papers/2512. Upon signing the act, George H.W. Bush emphasized, “[u]nder the
Appointments Clause of the Constitution . . . governmental authority may be exercised only by
officers of the United States.” Id.
343 See WARREN, supra note 203, at 223.
344 Sara R. Rinfret & Scott R. Furlong, Defining Environmental Rulemaking, in THE OXFORD
HANDBOOK OF U.S. ENVIRONMENTAL POLICY 379, 381 (Sheldon Kamieniecki & Michael E. Kraft
eds., 2013).
345 See WARREN, supra note 203, at 207.
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democratic sphere, everybody is called upon to participate.346
Furthermore, the administration is forced to listen to and consider
this input, and thus enter into a dialogue. But from this, no decisionmaking powers follow for the public: as delegated rulemaking takes
place in the second branch of government, and is thus governed by
the laws enacted by the lawmakers, it is not the participants who
decide but the democratically legitimated administrators.347 If the
people want to decide on administrative issues, they have to
concentrate their efforts at another level and vote for another
government. The United States’ system fulfills this democratic ideal
in administrative law.
C. The Judiciary: Adjudicating Rulemaking and the Rule of Law
The judiciary first and foremost serves the protection of the rule of
law and allows for individual self-determination.348 Judgments on
the rulemaking process—like all judgments—are retrospective, react
to an individual complaint, deal with an individual case, and are
bound by the Constitution and the law.349 They are based on reason,
not will, as Alexander Hamilton famously stated.350 The decisions of
the legislature, on the other hand, are based on a collective (and thus
democratic) will—and to a lesser extent, the decisions of the
executive, when it acts as a rule maker.
The century-old dilemma that presents itself is how the judiciary
can respect the democratic will and protect individual selfdetermination at the same time.351 Judicial protection in general is
important in order to protect individual self-determination.352
However, judicial review should not reach too far in order to allow for
collective self-determination. The separation of powers doctrine
ensures that democratic will-based decisions are made by the
legislature and the executive, not the judiciary, by restricting the
judicial control of legislative and administrative acts.353 While
reviewability and the scope of review, as well as the awarded remedy,
See id. at 207, 226.
See Cary Coglianese, The Internet and Public Participation in Rulemaking 3 (John F.
Kennedy Sch. of Gov’t, Harv. Univ., Working Paper RPP-2003-05, 2003).
348 See supra text accompanying note 71.
349 See WARREN, supra note 203, at 369–70, 406.
350 THE FEDERALIST NO. 78 (Alexander Hamilton).
351 See BICKEL, supra note 73, at 235; ELY, supra note 73, at 103.
352 See supra text accompanying note 71.
353 See HAROLD H. BRUFF, BALANCE OF FORCES: SEPARATION OF POWERS LAW IN THE
ADMINISTRATIVE STATE 63, 70, 72, 75 (2006).
346
347
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determine how the State’s decision on participation in administrative
proceedings is framed, “standing” determines who is allowed to
participate in this decision.354
Restricting the courts’ judicial review powers prohibits the courts
from rendering judgment on certain aspects of a case in order to
preserve the separation of powers.355 While a judgment will usually
vacate a rule, the possibility of remand without vacation allows for
the rule’s legal effect to continue.356 Standing limits the participation
of individuals in the courts’ proceedings and is equally controlled by
the separation of powers.357 Only a delicate balance between the
scope of review, the judgment’s effect, and legal standing satisfies the
separation of powers doctrine by balancing collective and individual
self-determination.358
1. Separation of Powers and Judicial Review
The courts protect the rule of law and allow for individual selfdetermination. Based on reason, judgments following the rule of law
are “wholly retrospective”359 and concern mainly the plaintiffs and
the defendants.360 The courts review the agencies’ rules.361 The
separation of powers doctrine bars them from political activity and
overreaching into the democratic realm of the other two branches by
restricting the courts’ review powers.362 This restriction plays out on
different levels. First, judicial review can be excluded.363 Second, the
scope of review might be restricted, inter alia, by deferring to the
administration.364
a. Exclusion of Judicial Review/Reviewability (5 U.S.C. § 701)
The exclusion of judicial review usually guards a core area or
LUBBERS, supra note 223, at 410, 469.
See infra Part V.C.1.
356 See infra Part V.C.2.
357 See infra Part V.C.3.
358 See infra Part V.C.4.
359 Strauss, supra note 114, at 766. From this, it follows that in general, judicial holdings
must be applied retroactively. Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752 (1995)
(citing Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 90 (1993)).
360 See Strauss, supra note 114, at 766.
361 The review of delegating laws does not protect participation and will not be considered
here.
362 See BRUFF, supra note 353, at 63, 70, 72, 75.
363 See infra Part V.C.1.a.
364 See infra Part V.C.1.b.
354
355
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“‘special province’ of the Executive”365 against judicial review and is
based on the separation of powers doctrine.366 The APA allows
Congress to preclude judicial review via statutes.367 The Supreme
Court tries to contain this wide exclusion with an assumption of the
reviewability of the decision (or non-decision).368 But the courts have
been reluctant to apply the presumption of reviewability.369 In its
much-criticized Heckler v. Chaney370 judgment, the Supreme Court
even turned the assumption upside-down in cases where the agency
refused to act.371 Far-reaching exclusion of judicial review has rightly
been attacked on grounds of the separation of powers by Justices
Reed and Douglas, in their dissent in United States v. Wunderlich,372
stating that the exclusion of judicial review:
[M]akes a tyrant out of every contracting officer. He is
granted the power of a tyrant even though he is stubborn,
perverse or captious. He is allowed the power of a tyrant
though he is incompetent or negligent. He has the power of
life and death over a private business even though his decision
is grossly erroneous. Power granted is seldom neglected.
The principle of checks and balances is a healthy one. An
official who is accountable will act more prudently. A citizen
who has an appeal to a body independent of the controversy
has protection against passion, obstinacy, irrational conduct,
and incompetency of an official.373
The exclusion of judicial review, rather than the more specific
limitation of its scope, might lead to too much discretion for the other
365 Cf. United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting Heckler v. Chaney,
470 U.S. 821, 832 (1985)) (explaining that a court can exercise its power in a selectiveprosecution claim).
366 Richard E. Levy & Sidney A. Shapiro, Government Benefits and the Rule of Law: Toward
a Standards-Based Theory of Judicial Review, 58 ADMIN. L. REV. 499, 540 (2006). See 5 U.S.C.
§ 701(a) (2014); Chaney, 470 U.S. at 832–33.
367 LUBBERS, supra note 223, at 405–06.
368 Harold H. Bruff, Availability of Judicial Review, in A GUIDE TO JUDICIAL AND POLITICAL
REVIEW OF FEDERAL AGENCIES 12 (John F. Duffy & Michael Herz eds., 2005). See, e.g., Citizens
to Protect Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971); Ass’n. of Data Processing Orgs.
v. Camp, 397 U.S. 150, 156 (1970) (first quoting Stark v. Wickard, 321 U.S. 288, 312 (1944)
(Frankfurter, J., dissenting); and then quoting Shaughnessy v. Pedreiro, 349 U.S. 48, 51
(1955)); Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967).
369 WARREN, supra note 203, at 381–82 (discussing various Court judgments regarding the
reviewability of agency actions).
370 Heckler v. Chaney, 470 U.S. 821 (1985).
371 See id. at 837–38; WARREN, supra note 203, at 379–80; Cass R. Sunstein, What’s Standing
after Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 MICH. L. REV. 163, 195 (1992).
372 United States v. Wunderlich, 342 U.S. 98 (1951).
373 Id. at 101–02 (Douglas, J., dissenting).
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branches, which often do not comply with the legal rules binding
them without judicial oversight374 and thus leave individual selfdetermination unprotected. Because of this, courts indeed need to
follow the presumption of reviewability.
b. Scope of Judicial Review (5 U.S.C. § 706)
The scope of judicial review is governed by 5 U.S.C. § 706.375 It has
been said that the article’s different provisions are rather vague and
wide open to interpretation.376 However, two undisputed basic
principles exist: The first one is that at least some deference is
granted to the agencies.377 This principle “is rooted in the separationof-powers doctrine.”378 Equally rooted in the doctrine is the second
principle, that under no circumstances may courts substitute the
agency’s decision with their own.379 Both principles guard the
collective decision-making process from the courts’ influence. Aside
from that, dispute arises as to the exact scope of review. One can
differentiate between an approach that allows for a wide discretion
of some aspects of the agencies’ actions380 and one that allows for close
scrutiny of some other aspects.381 The former is said to be applied to
substantive rights, the latter to procedural rights.382 Therefore,
procedural rights will first be differentiated from substantive
rights.383
i. Substantive and Procedural Rights
Already in the 1970s, Professor Richard Stewart wrote that as a
reaction to the rise of the administrative state, “courts have changed
the focus of judicial review . . . so that its dominant purpose is no
longer the prevention of unauthorized intrusions on private
374 See Ittai Bar-Siman-Tov, Lawmakers as Lawbreakers, 52 WM. & MARY L. REV. 805, 869–
70 (2010) (suggesting without judicial review there may be a lack of self-policing by legislators
using examples from states).
375 5 U.S.C. § 706 (2014); ZIAMOU, supra note 17, at 172.
376 WARREN, supra note 203, at 395; see ZIAMOU, supra note 17, at 172 (stating the provisions
of APA § 706).
377 See WARREN, supra note 203, at 395–96.
378 Id.; see Douglas W. Kmiec, Judicial Deference to Executive Agencies and the Decline of the
Nondelegation Doctrine, 2 ADMIN. L.J. 269, 269 (1988).
379 Citizens to Protect Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).
380 See infra Part V.C.1.b.ii.
381 See infra Part V.C.1.b.iii.
382 See Merrick B. Garland, Deregulation and Judicial Review, 98 HARV. L. REV. 505, 510–
11 (1985).
383 See infra Part V.C.1.b.i.
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autonomy, but the assurance of fair representation for all affected
interests in the exercise of the legislative power delegated to
agencies.”384 The differentiation that Stewart makes is one between
individual self-determination (“private autonomy”) and collective
self-determination (“fair representation”).385 This focus of review
translates on the level of scope of review into the differentiation
between procedural and substantive laws, as observed by Justice—
then Professor—Elena Kagan nearly thirty years later.386 She
describes that because of the rise of the administrative state, courts
“shy away from such substantive review of agency outcomes, perhaps
in recognition of their own inability to claim either a democratic
pedigree or expert knowledge. [They] incline instead toward
enforcing structures and methods of decisionmaking.”387
Substantive laws are created by statute and are concerned with a
certain subject matter, the “what.”388 They confer substantial rights
on an individual and affect the outcome of the process, but not the
process itself.389 Procedural laws, in contrast, are concerned with the
“how,” the way substantive laws are applied and come into being.390
Procedural laws thus affect the decision-making process and the
participation process.391 They can be further sub-divided into quasiprocedural norms, which concern the decision-making process, and
procedural norms, which concern participation in the process.392
Agency decisions can run counter to substantive laws as well as
procedural laws.393 Consequently, the courts review agencies’ actions
against both sets of norms.394 When using the substantive law
yardstick, the courts protect individual self-determination: if an
administrative decision breaches a substantive law, it will be
declared unlawful.395 This is old-fashioned, standard judicial review,
Stewart, supra note 149, at 1712 (referring to the expansion of the traditional model).
Id.
386 Kagan, supra note 148, at 2269.
387 Id.
388 See Substantive Law, CORNELL UNIV. L. SCH., https://www.law.cornell.edu/wex/subs
tantive_law (last visited Feb. 8, 2016).
389 See id.
390 See Thomas O. Main, The Procedural Foundation of Substantive Law, 87 WASH. U. L.
REV. 802, 802 (2010).
391 See Garland, supra note 382, at 578.
392 See id. at 578, 579 (differentiating procedural from quasi-procedural, and noting that
participation as such is procedural, but the agency’s handling of the results of participation is
quasi-procedural).
393 See id. at 525–26.
394 See id.
395 See infra note 403 and accompanying text.
384
385
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which protects individual self-determination against administrative
acts.
Individual self-determination is also protected by judicial review in
light of the procedural norms. However, different from the protection
of substantive rules, the courts not only protect the individual and
individual self-determination—e.g., by protecting the individual
right to participate in an administrative proceeding—but extend
their protection to the decision-making process.396 This reaches
beyond the courts’ original task of protecting the individual against
the collective, as now the courts are protecting the collective decisionmaking process against the agency: “[A]dministrative procedures . . .
simultaneously please the Baptists and the bootleggers.”397 This
protection of collective self-determination can have two negative,
mutually exclusive, consequences that render procedural rights far
more complicated than substantive rights.398 If the courts exercise
too much scrutiny, collective self-determination is seriously impaired
by non-elected federal judges. If the courts do not exercise enough
scrutiny, individual participation rights become seriously impaired.
Chief Justice John Roberts—looking at the problem from an
institutional point of view and arguing in favor of judicial scrutiny of
agency action399—framed this dilemma by stating that the Court’s
“duty to police the boundary between the Legislature and the
Executive is as critical as [the Court’s] duty to respect that between
the Judiciary and the Executive.”400 Whether the courts have
succeeded in striking the right balance between the three branches,
and consequently of individual and collective self-determination,
depends on the courts’ protection of substantive rights401 and
procedural rights.402
396 See supra notes 100–02 and accompanying text. Courts protect the process ex negativo
and in cases involving substantive rights. The case here is different though, as the protection
is not counter to individual rights but parallel to them. See, e.g., WARREN, supra note 203, at
377 (noting that when courts do not review individuals’ requests for review, the individuals just
have to live with the agency decision).
397 Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 COLUM. L.
REV. 1749, 1805 (2007).
398 This tension between individual self-determination and collective self-determination
seems to mirror the influence the legislature has on individual self-determination. But it is far
more difficult to conceive too much protection of individual self-determination through a
process of collective self-determination than the other way round.
399 City of Arlington v. FCC, 133 S. Ct. 1863, 1885, 1886 (2013) (Roberts, C.J., dissenting).
400 Id. at 1886.
401 See infra Part V.C.1.b.ii.
402 See infra Part V.C.1.b.iii.
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ii. Substantive Laws and the Chevron Doctrine
According to 5 U.S.C. § 706(2)(C), a rule that is “in excess of
statutory jurisdiction, authority, or limitations, or short of statutory
right,” must be held to be “unlawful and set aside” by the Court.403
The Supreme Court granted agencies wide discretion in interpreting
whether a statutory right is indeed a statutory right in the landmark
decision Chevron, U.S.A., Inc. v. Natural Resources Defense Council
(NRDC).404 The Court applies a broad scope of review and allows for
wide deference in rulemaking procedures in cases in which an agency
interprets a statute.405 A two-step inquiry is necessary: “If the intent
of Congress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously expressed
intent of Congress.”406 But, “if the statute is silent or ambiguous with
respect to the specific issue,” the courts can only decide on “whether
the agency’s answer is based on a permissible construction of the
statute,”407 or—in other words—whether it “has adopted a reasonable
interpretation of the statute.”408 In the absence of clear congressional
intent, the Chevron test gives the agencies a wide leeway in
rulemaking by allowing them to interpret substantive laws as they
see fit, as long as the interpretation is reasonable.409
The
determination of whether a statute allows a certain rule of course
impacts on the substantive rights—and obligations—of the
individual: in the case of King v. Burwell,410 the second case on the
legality of “Obamacare,” the decisive question was whether
individuals are entitled to federal health care subsidies in states
which have not established their own exchange yet.411 Although the
statute uses the words “established by the state” in the particular
5 U.S.C. § 706(2)(C) (2014).
Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 866 (1984). See WARREN, supra note
203, at 375. Chevron has been the most cited U.S. Supreme Court decision ever. Thomas J.
Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of
Chevron, 73 U. CHI. L. REV. 823, 823 (2006).
405 See Robert C. Dolehide, A Comparative “Hard Look” at Chevron: What the United
Kingdom and Australia Reveal About American Administrative Law, 88 TEX. L. REV. 1381,
1386 (2010).
406 Chevron, 467 U.S. at 842–43.
407 Id. at 843. See, e.g., Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 84 (2002); Capital
Cities Cable v. Crisp, 467 U.S. 691, 699 (1984) (quoting Fid. Fed. Sav. & Loan Ass’n v. de la
Cuesta, 458 U.S. 141, 153–54 (1982)); United States v. Erika, Inc., 456 U.S. 201, 208 (1982).
408 Kagan, supra note 148, at 2373.
409 See Miles & Sunstein, supra note 404, at 824.
410 King v. Burwell, 135 S. Ct. 2480 (2015).
411 Id. at 2485.
403
404
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section,412 it can be inferred from other sections that it needs to be
read as “established by the state or by the Federal Government.”413
The latter understanding was the one supported by the IRS.414 This
reading led to a substantive individual right to health care subsidies
in all of the United States; the petitioners’ reading did not.415 The
appeals court upheld the agency’s reading on grounds of step two of
the Chevron test,416 as did the Supreme Court.417 Since the Court
deferred, the agency’s decision—within some boundaries—was
decisive.418 But the agency could have also decided otherwise, as long
as this differing understanding would also be reasonable.
Two main accounts of the Chevron jurisprudence are in dispute:
the first account argues that the interpretation of the law is
essentially a task which adheres to the rule of law, and therefore is
not an open and democratic procedure.419 As Chevron was about the
outcome of the process and substantive rights, no deference should
have been accorded to the agencies.420 By deferring, the courts
instead limited their ability to protect individual self-determination.
The Obamacare example shows that by deferring, the agency is
granted the power to decide on substantive rights: had the agency
decided to interpret the statute in a way that no subsidies had been
awarded in states where no state exchange had been set up, the
courts would not have determined that a substantive right to
subsidies existed.
This reading diminishes individual selfdetermination and should be corrected by the courts. The courts,
however, do not always follow their own doctrine, but sometimes
apply a narrower scrutiny in order to protect individual rights.421
A second account of the Chevron doctrine does not focus on its
26 U.S.C. § 36B(b)(2)(A) (2014).
King, 135 S. Ct. at 2496 (Scalia, J., dissenting).
414 Id. at 2487 (majority opinion).
415 See id. at 2488, 2495–96.
416 King v. Burwell, 759 F.3d 358, 376 (4th Cir. 2014), aff’d, 135 S. Ct. 2480 (2015).
417 King, 135 S. Ct. at 2488, 2489, 2496.
418 See id. at 2496 (affirming the lower court’s decision and thus upholding the agency’s
decision).
419 See Kagan, supra note 148, at 2368.
420 See generally Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN.
L. REV. 363, 382–83 (1986) (discussing circumstances under which a court will engage in
judicial review of agency policy decisions).
421 See, e.g., Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 133 (1992) (denying
deference to the Forsyth County administrator in the interest of protecting First Amendment
rights); see also Eric Berger, Individual Rights, Judicial Deference, and Administrative Law
Norms in Constitutional Decision Making, 91 B.U. L. REV. 2029, 2033 (2011) (“Sometimes [the
Supreme Court] denies deference because unbridled administrative discretion creates too much
risk for constitutional infringement.”).
412
413
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limits to the protection of individual self-determination through the
courts, but on the fact that its limited scope of review protects
collective self-determination via deference to the agencies.422 This is
because the agencies—acting in a democratic fashion as rulemakers
because of the openness of the decision-making process and thus of
the procedure423—are provided with discretion in making their policy
decision. This different reading is due to the Supreme Court’s failure
to “adequately distinguish between outcome review and process
review.”424
According to the second reading, not only the
interpretation of law falls within Chevron’s purview but also matters
of policy.425 Then, “[j]udicial deference to agency ‘interpretation’ of
law is simply one way of recognizing a delegation of law-making
authority [and thus policy] to an agency.”426 To use the Obamacare
example again, the agency’s decision to interpret the law either way
would not so much be a legal decision, but a policy decision based on
the rulemaking process and its inherently democratic character.427
No matter which account one follows, it is certainly true that the
422 See Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 865–66 (1984); Cass R. Sunstein,
Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 465 (1987) (“The Court justified
its decision in part by pointing to presidential supervision over agencies and to the fact that
the President, unlike courts, is accountable to the electorate.”).
423 See discussion supra Parts V.B.1–2.
424 Gary Lawson, Outcome, Procedure and Process: Agency Duties of Explanation for Legal
Conclusions, 48 RUTGERS L. REV. 313, 338 (1996).
425 See Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071,
2086–87 (1990). The second step, it is argued, is about the decision-making process. See, e.g.,
Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 CHI.-KENT L. REV. 1253,
1260–63 (1997) (arguing against the second step in Chevron and examining cases from the D.C.
Circuit Court that have transformed the question of whether the agency’s decision was
reasonable to whether it was “reasoned”); Matthew C. Stephenson & Adrian Vermeule,
Chevron has Only One Step, 95 VA. L. REV. 597, 604 (2009) (“We have the doctrinal equivalent
of musical chairs, with three doctrines (Chevron Step One, Chevron Step Two, State Farm) and
only two chairs (interpretive reasonableness and reasoned decisionmaking).”). See generally
Kmiec, supra note 378, at 287–90 (making the assumption that Chevron applies to policy);
Richard J. Pierce, Jr., The Role of Constitutional and Political Theory in Administrative Law,
64 TEX. L. REV. 469, 520–24 (1985) (making the assumption that Chevron applies to policy);
Kenneth W. Starr, Judicial Review in the Post-Chevron Era, 3 YALE J. ON REG. 283, 307 (1986)
(making the assumption that Chevron applies to policy).
426 Henry P. Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1, 26
(1983). See also David J. Barron & Elena Kagan, Chevron’s Nondelegation Doctrine, 2001 SUP.
CT. REV. 201, 216–17 (“[W]hen Congress grants an agency the power to implement a statute in
a way that has binding legal effect . . . Congress necessarily grants the agency the power to
resolve ambiguities in the statute.”).
427 This is consistent with Chevron’s two-step analytical framework, which “is premised on
the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the
agency to fill in the statutory gaps.” King v. Burwell, 135 S. Ct. 2480, 2488 (2015) (quoting
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)); Barron & Kagan, supra
note 426, at 213.
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Court limits the protection of individual self-determination by
allowing for wide deference in the interpretation of substantive
laws.428 Maybe, in order to counter this limited review on substantive
norms, the courts’ review of the rulemaking process can make up for
this limitation?
iii. Procedural Laws and the Hard-Look Doctrine
The Supreme Court’s scrutiny of the rulemaking process and the
corresponding procedural laws and rights differ from the scrutiny of
substantive rights.429 The subdivision of procedural rights into
(quasi-)procedural norms, which concern the decision-making
process, and procedural rights, which concern the participation in the
process, is reflected by 5 U.S.C. § 706(2)(A) and (D).430
According to 5 U.S.C. § 706(2)(A) and (D), the reviewing court must
“hold unlawful and set aside agency action, findings, and conclusions
found to be [not in] observance of procedure required by law.”431 This
latter norm encompasses the requirements of 5 U.S.C. §553: a notice
of proposed rulemaking, an opportunity to participate, the
publication of a statement of basis and purpose, and the publication
of the notice procedure, as well as following special procedural norms
made up of the delegation norms and the procedural requirements
set by the agency itself.432 This protection is of considerable
importance, as it protects the right to participate.433 From this norm,
it follows that in case no participation took place where required by
law, the rule must be held unnecessary and set aside.434 However,
the “harmless error” rule applies, which ensures that a rule will be
upheld “‘when a mistake of the administrative body is one that clearly
had no bearing on the procedure used or the substance of decision
reached.’”435 It thus depends on whether the same result could be
See Kagan, supra note 148, at 2373.
See, e.g., Robert G. Bone, The Process of Making Process: Court Rulemaking, Democratic
Legitimacy, and Procedural Efficacy, 87 GEO. L.J. 887, 950–51 (1999).
430 See 5 U.S.C. § 706(2)(A), (D) (2014).
431 Id.
432 See 5 U.S.C. § 553 (2014). One author differentiates between procedures and process of
decision-making. Lawson, supra note 424, at 316. As most authors refer to the decision-making
process as procedural this term will be used in a broad sense.
433 See Bruce P. Ely et al., State Administrative Procedure Acts: Procedural Avenues to Attack
Faulty Regulations and Assessments, 19 J. MULTISTATE TAX’N & INCENTIVES 8, 10–11 (2009).
434 See, e.g., Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946, 948–49 (D.C. Cir. 1987)
(differentiating interpretative rules for which no notice-and-comment procedure is necessary
and legislative rules); see 5 U.S.C § 533(b).
435 United States Steel Corp. v. EPA, 595 F.2d 207, 215 (5th Cir. 1979) (quoting Braniff
428
429
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expected in a new proceeding.436
However, a right to participate is depleted of meaning if the agency
does not consider the results of the participation and then take those
results into account.437 This is where 5 U.S.C. § 706(2)(A) comes into
play, which foresees that the reviewing court must “hold unlawful
and set aside agency action, findings, and conclusions found to be
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.”438 The ensuing test is best understood as a
procedural standard,439 as it is about reasoned decision-making,440
and it is essentially about the policy decision the agency makes and
not its legal interpretation of the statute.441 The courts apply the socalled hard-look doctrine.442 The doctrine is understood by the
Supreme Court as a very strict standard which needs to be thorough,
“searching[,] and careful.”443 It first and foremost demands that the
agency develops a rulemaking record, in order to allow the courts to
review the decision-making process.444 Because of this, the hard-look
doctrine has been blamed for inflating the rulemaking records to
hundreds of pages.445 The procedural requirements demand that the
record supports the conclusions which led to the rule; tests the basis
Airways v. Civil Aeronautics Bd., 379 F.2d 453, 466 (D.C. Cir. 1967)).
436 See LUBBERS, supra note 223, at 524 n.211; Craig Smith, Taking “Due Account” of the
APA’s Prejudicial-Error Rule, 96 VA. L. REV. 1727, 1740 (2010). It has been held that “utter
failure to comply with notice and comment cannot be considered harmless if there is any
uncertainty at all as to the effect of that failure.” Sugar Cane Growers Coop. of Fla. v. Veneman,
289 F.3d 89, 96 (D.C. Cir. 2002) (citing McLouth Steel Products Corp. v. Thomas, 838 F.2d
1317, 1324 (D.C. Cir. 1988)).
437 See Ely et al., supra note 433, at 11.
438 5 U.S.C. § 706(2) (2014).
439 See Garland, supra note 382, at 525; Thomas J. Miles & Cass R. Sunstein, The Real World
of Arbitrariness Review, 75 U. CHI. L. REV. 761, 761 (2008).
440 See Bressman, supra note 397, at 1761, 1777; McFeeley, supra note 324, at 352–53;
Lawson, supra note 424, at 318. But cf. Stephenson & Vermeule, supra note 425, at 598, 603
(proposing that the courts should move to a single-step test that examines the reasonableness
of an agency’s interpretation).
441 See Patrick Garry, The Values and Viewpoints Affecting Judicial Review of Agency
Actions: A Focus on the Hard-Look Doctrine, 53 WASHBURN L.J. 71, 74–75, 76 (2013);
Stephenson & Vermeule, supra note 425, at 603; see generally Breyer, supra note 420, at 364
(discussing courts’ attitudes towards agency regulatory policy). Critics also argue that hardlook review can be used by judges to overturn agency actions to which they have ideological
objections, thus allowing those judges to engage in inappropriate policymaking. Matthew C.
Stephenson, A Costly Signaling Theory of “Hard-Look” Judicial Review, 58 ADMIN. L. REV. 753,
765 (2006) (discussing criticisms of hard-look review). See Bressman, supra note 397, at 1766–
67.
442 Stephenson, supra note 441, at 754.
443 Id. at 758, 771–72; Breyer, supra note 420, at 387.
444 Stephenson, supra note 441, at 758.
445 See Strauss, supra note 114, at 760 (explaining in the subsequent pages how this led
agencies to circumvent participation).
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of the agencies’ conclusions;446 and reviews whether the policy choices
are rationally connected with the facts447 and have been adequately
articulated, defended, and adhered to.448
Alternatives must have been taken into account.449 “[C]ourts
require[] agencies to address and respond to the factual, analytical,
and policy submissions made by the various participating interests
and justify their policy decisions with detailed reasons supported by
the rulemaking record.”450 Thus, the hard-look doctrine is about
whether the agency has considered the facts before it and has
adequately balanced the results of the participation.451 The courts
closely guard the collective process of decision-making.452 In theory,
they do not scrutinize the outcome of the collective process. In reality,
they sometimes do though, as it is a thin line—easily overstepped—
between requiring agencies to address and respond to submissions,
and requiring agencies to create a different rule even though the legal
preconditions have been met (but not to the satisfaction of the
judge(s)).453
As the process of collective decision-making
encompasses the individual right to have one’s participation
considered, the scrutiny of the agency’s duty to consider the results
of the participation process also protects individual selfdetermination.454 Thus, the hard-look doctrine indeed protects
individual self-determination—even if it might over-scrutinize
446 BENJAMIN W. MINTZ & NANCY G. MILLER, A GUIDE TO FEDERAL AGENCY RULEMAKING
323 (2d ed.1991).
447 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
448 Sunstein, supra note 173, at 344.
449 Breyer, supra note 420, at 383; Cass R. Sunstein, Deregulation and the Hard-Look
Doctrine, 1983 SUP. CT. REV. 177, 182. See, e.g., State Farm, 463 U.S. at 45, 48, 55, 56 (citing
Bob Jones Univ. v. United States, 461 U.S. 574, 599–602 (1983); Haig v. Agee, 453 U.S. 280,
291–301 (1981)) (discussing the National Highway Traffic Safety Administration’s failure to
consider alternatives and adequately justify their rescission regarding the passive restraint
requirement in new vehicles).
450 Stewart, supra note 288, at 442.
451 See Garland, supra note 382, at 526–27 (citing Home Box Office, Inc. v. FCC, 567 F.2d 9,
35 (D.C. Cir. 1997)).
452 See Garry, supra note 441, at 77.
453 See Garland, supra note 382, at 526–27; Garry, supra note 441, at 79; Scott A. Keller,
Depoliticizing Judicial Review of Agency Rulemaking, 84 WASH. L. REV. 419, 481 (2009)
(“[W]hen judges are given significant discretion to invalidate agency action, their policy
preferences affect their decisions.”); Stephenson, supra note 441, at 765; Sunstein, supra note
449, at 188 (“There is, moreover, the familiar risks that judicial remedies will be based on a
skewed understanding of a complex regulatory scheme or serve the preferences of the judges
rather than promote genuine public interest.”).
454 Cf. Sunstein, supra note 449, at 188 (“It is important to be realistic about the limitations
of judicial remedies, and one may find it highly implausible to think that such remedies will by
themselves be able to transform the regulatory process into a forum for collective selfdetermination.”).
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collective self-determination in some instances.
A Supreme Court decision in 2009 recognized the dilemma that the
courts must only scrutinize the boundaries of agency rulemaking,
and points in the right direction by underlining an argument that
Chief Justice William Rehnquist already made in his dissenting
opinion in State Farm.455 In FCC v. Fox Television Stations,456 the
Supreme Court held that not only rational reasons but also political
reasons may inform the agency’s policy decision, and thus allowed for
some deference in the essentially political and democratic process of
rulemaking:
[T]he agency must show that there are good reasons for the
new policy. But it need not demonstrate to a court’s
satisfaction that the reasons for the new policy are better than
the reasons for the old one; it suffices that the new policy is
permissible under the statute, that there are good reasons for
it, and that the agency believes it to be better, which the
conscious change of course adequately indicates. This means
that the agency need not always provide a more detailed
justification than what would suffice for a new policy created
on a blank slate.457
It seems as if the Supreme Court has indeed found a sensible
balance between strict scrutiny of and leeway for procedural norms
in rulemaking.
To conclude, the scope of review of substantive rules allows for a
lot of deference to the agencies, and primarily protects the agencies’
policy choices rather than individual self-determination. Still, often
the courts do not defer, despite Chevron, and thus protect individual
self-determination. The review of procedural rules, even if rather
aimed at protecting collective self-determination, also protects
individual self-determination. In addition, the Supreme Court
softened this hard-look doctrine with regard to the decision-making
455 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983)
(Rehnquist, J., dissenting) (“A change in administration brought about by the people casting
their votes is a perfectly reasonable basis for an executive agency’s reappraisal of the costs and
benefits of its programs and regulations.”); FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515–16 (2009).
456 Fox Television Stations, Inc., 556 U.S. 502.
457 Id. at 515. See Donnelly, supra note 307, at 361 (“The case involved a change in a policy
of the Federal Communication Commission which was, as Justice Scalia put it, based on
‘significant political pressure from Congress’. In a five-four split, the Court held that an agency
need not always provide a more detailed justification for a policy change, thereby perhaps
rendering it easier for agencies to justify a change of policy based on political, rather than
expertise, considerations.”).
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process, and thus leaves leeway for the process of collective selfdetermination. At the same time, the basis of any decision-making
process, i.e., the question of whether participation has taken place, is
under strict scrutiny in order to protect both the individual right to
participate and the collective process. Justice Breyer’s verdict that
“current doctrine is anomalous [because i]t urges courts to defer to
administrative interpretations of regulatory statutes, while also
urging them to review agency decisions of regulatory policy
strictly”458 is not entirely true anymore, thanks to the 2009 Supreme
Court decision FCC v. Fox Television Stations. Still, the right balance
has not yet been found between individual and collective selfdetermination—one which puts the protection of individual selfdetermination at center stage, and at the same time gives enough
leeway to the administration’s policy decisions which belong to the
realm of collective self-determination.
2. Judicial Remedy
The standard judicial remedy would be to set aside a rule that
violates the law—be it substantive or procedural—within the scope
of review.459 But the courts, in order to protect the agencies’ collective
decision-making process, have taken to remanding without vacating,
especially when procedural rights have been breached.460 This might
well be the right approach from a collective self-determination
perspective,461 at least as long as the administrative process can be
repeated, or will be repeated soon, and the repetition does not serve
only as a fig leaf, and may well lead to a new outcome. However, from
an individual self-determination perspective, this remedy seems to
be quite weak, as it leaves an illegal rule intact and thus, turns a
plaintiff’s victory into a defeat. This speaks in favor of remand and
vacate—at least as long as there no strong arguments against a
vacation based on rules and/or the specific context (e.g. that people
would go hungry if a food-stamp program were put on hold
altogether).
458 Breyer, supra note 420, at 364–65; see also Dolehide, supra note 405, at 1381 (noting the
anomaly that though judges are experts at statute interpretation, they defer to an agency’s
interpretation of a statute).
459 See generally Garland, supra note 382, at 568–70 (listing remedies available to courts,
including requiring agencies to promulgate alternate rules).
460 See id. at 570; Levin, supra note 86, at 305–310.
461 See generally id. (discussing the remedies available to courts and the impact those
remedies have on the agency decision making process).
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3. Participation on the Judicial Level: Legal Standing
Different from participation in the two other branches,
participation plays a far bigger role in judicial proceedings. The
courts can never decide on their own whether to act: they are obliged
to pick up and decide on what an individual or a group brings to them,
and they are confined by the bounds of the matter in dispute.462 Thus,
the right to participate, i.e., the law of standing to initiate judicial
proceedings, equals the right to engage the third branch.
Standing was developed only in the 1920s and 1930s as part of the
struggle on how to deal with the regulatory state463 and was based on
the “Case or Controversy” requirement of Article III, Section 2 of the
U.S. Constitution.464 Standing was associated with a “legal right,—
one of property, one arising out of contract, one protected against
tortious invasion, or one founded on a statute which confers a
privilege.”465 Standing was understood to be very narrow and allowed
only those whose rights were infringed upon to participate on the
judicial level.466 This so called legal interests test was developed
especially by Justices Frankfurter and Brandeis in order “to limit the
occasions for judicial intervention into democratic processes.”467 In
other words, standing flows from the separation of powers doctrine:
The idea of separation of powers that underlies standing
doctrine explains why . . . [certain] suits, even when premised
on allegations of several instances of violations of law, are
rarely if ever appropriate for federal-court adjudication . . .
[because “c]arried to its logical end, [respondents’] approach
would have the federal courts as virtually continuing monitors
of the wisdom and soundness of Executive action; such a role
is appropriate for the Congress acting through its committees
462 See generally Joan Leary Matthews, Unlocking the Courthouse Doors: Removal of the
“Special Harm” Standing Requirement Under SEQRA, 65 ALB. L. REV. 421, 435–36 (2001)
(discussing the issue of standing and its requirements, including that courts are limited to
hearing cases or controversies as requested by the parties).
463 See Sunstein, supra note 371, at 170.
464 See id. at 168, 168 n.18.
465 Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118, 137 (1939) (citing In Re Ayers,
123 U.S. 443, 496 (1887); Walla Walla City v. Walla Walla Water Co., 172 U.S. 1, 22–23 (1898);
Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110–11 (1902); Ex parte Young, 209
U.S. 123, 167–68 (1908); Scully v. Bird, 209 U.S. 481, 489–90 (1908); Phila. Co. v. Stimson, 223
U.S. 605, 622–23 (1912); Lane v. Watts, 234 U.S. 525, 540 (1914); Truax v. Raich, 239 U.S. 33,
37–38 (1915); Lipke v. Lederer, 259 U.S. 557, 562 (1922)).
466 See Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation
of Powers, 17 SUFFOLK U. L. REV. 881, 887 n.28 (1983).
467 Sunstein, supra note 371, at 179.
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and the ‘power of the purse’; it is not the role of the judiciary,
absent actual present or immediately threatened injury
resulting from unlawful governmental action.”468
The Supreme Court abandoned the legal interests test in favor of
the injury-in-fact test in 1970, and thus opened the door to a wide
array of cases.469 The Supreme Court decided that an “injury in fact,
economic or otherwise” would be sufficient for standing as long as
“the interest sought to be protected by the complainant is arguably
within the zone of interests to be protected or regulated by the statute
or constitutional guarantee in question.”470 Within this zone of
interest, nearly any interest can be named, such as an “aesthetic,
conservational and[/or] recreational” interest.471 The reason for the
relaxation of the standing requirement was due to the perception that
agencies were captured by the interests of big industry.472 Thus, the
courts were supposed to control the agencies in order to balance the
influence of the lobbies.473 Relaxed standing rules did not aim at
more individual self-determination but aimed to control the process
of collective self-determination via the judiciary.474 Only in one
regard did this development in the 1970s advance individual selfdetermination. This was the case in the Data Processing decision, in
468 Allen v. Wright, 468 U.S. 737, 759–60 (1984) (quoting Laird v. Tatum, 408 U.S. 1, 15
(1972)). See Christoph Möllers, Steps to a Tripartite Theory of Multi-level-Government 39 (Jean
Monnet Program, Working Paper No. 5/03, 2003), www.jeanmonnetprogram.org/archive/paper
s/03/030501.pdf; Richard J. Pierce, Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially
Imposed Limit on Legislative Power, 42 DUKE L.J. 1170, 1178 (1993); Scalia, supra note 466, at
891; STONE ET AL., supra note 57, at 106 (“Standing ensure[s] that courts will not hear cases
simply because they want to; they require a concrete stake and thus give the executive and
legislative branches a range of breathing space.”).
469 See Ass’n of Data Processing Servs. Org. v. Camp, 397 U.S. 150, 152–54 n.1 (1970)
(quoting Ass’n of Data Processing Servs. Org. v. Camp, 406 F.2d 837, 843 (8th Cir. 1969)).
470 Id. at 152, 153. See also Air Courier Conf. of Am. v. Am. Postal Workers Union, 498 U.S.
517, 523, 530–31 (1991) (denying standing because the zone of interest test was not passed).
471 Ass’n of Data Processing Servs. Org., 397 U.S. at 153–54 (quoting Scenic Hudson Pres.
Conference v. Fed. Power Com., 354 F.2d 608, 616 (1965); Office of Commc’n of United Church
of Christ v. FCC, 359 F.2d 994, 1002 n.16 (1966)). See, e.g., Citizens to Pres. Overton Park, Inc.
v. Volpe, 401 U.S. 402, 405–06, 410 (1971) (finding that petitioners, comprised of private
citizens and conservation organizations, had standing to bring a claim against the Secretary of
Transportation for allegedly failing to undertake plans to minimize harm to a public park
during construction of a highway); United States v. Students Challenging Regulatory Agency
Procedures, 412 U.S. 669, 675–76, 678, 683–84, 685 (1973) (finding that appellees’ injury of
“economic, recreational and aesthetic harm” was sufficient to establish standing).
472 Sunstein, supra note 371, at 183–84.
473 See generally id. (noting that agencies were subject to political pressure from regulated
industries, leading to changes to the concept of standing).
474 See, e.g., id. at 203–04 (describing the application of the relaxed standing principle in the
Regents of the Univ. of Cal. v. Bakke case, which granted the plaintiff standing based on
ostensibly collective rather than individual injury).
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which the Supreme Court held, in short, that “beneficiaries of
government regulation, not merely those trying to fend off
government action, can have standing to sue.”475
In addition to this relaxation through the courts, Congress
developed the so-called citizen suit, which allowed standing for
everybody based on specific statutes. The Supreme Court put this
into reverse gear in the 1990s. In its Lujan decision,476 the Court
stated:
We have consistently held that a plaintiff raising only a
generally available grievance about government—claiming
only harm to his and every citizen’s interest in proper
application of the Constitution and laws, and seeking relief
that no more directly and tangibly benefits him than it does
the public at large—does not state an Article III case or
controversy.477
While the judgment accepted the “injury in fact” requirement, the
Court emphasized the requirement of a concrete interest: “[T]he
plaintiff must have suffered an ‘injury in fact’—an invasion of a
legally protected interest which is (a) concrete and particularized, . .
. and (b) ‘actual or imminent, not “conjectural” or “hypothetical.”’”478
A plaintiff must show more than a mere “general interest [in the
alleged procedural violation] common to all members of the public.”479
The judgment then turned to the citizen suit provision of the
Endangered Species Act (ESA), which provides that anybody may
enjoin the government where it is allegedly in breach of the ESA.480
By this, standing has been expressly ordained by Congress onto
anybody as “part of a complex system in which Congress . . . enlists
courts and citizens in order to produce compliance.”481 The Court
refused to accept this: “[T]he injury-in-fact requirement had been
satisfied by congressional conferral upon all persons of an abstract,
self-contained, noninstrumental ‘right’ to have the Executive observe
STONE ET. AL., supra note 57, at 108.
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1991).
477 Id. at 573–74.
478 Id. at 560 (citations omitted) (first citing Allen v. Wright, 468 U.S. 737, 756 (1984); Warth
v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740 n.16 (1972); and
then quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)); see also Summers v. Earth
Island Inst., 555 U.S. 488, 493 (2009) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180 (2000)) (noting that this is still the same rule that courts
are using).
479 Ex parte Lévitt, 302 U.S. 633, 634 (1937) (per curiam).
480 Sunstein, supra note 371, at 200.
481 Id. at 221.
475
476
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the procedures required by law. We reject this view.”482 While
accepting standing on the basis of a concrete interest, the Court
declared the citizen’s suit to be unconstitutional.483
Some have voiced the fear that from this judgment, it follows that
procedural rights cannot confer standing anymore.484 However, in a
clarifying footnote, the Court held that a breach of a procedural right
can lead to standing “so long as the procedures in question are
designed to protect some threatened concrete interest of [the
individual] that is the ultimate basis of his standing.”485 This view is
reinforced by Justices Blackmun’s and O’Connor’s dissent, which
insists that one “cannot be saying that ‘procedural injuries’ as a class
are necessarily insufficient for purposes of Article III standing. Most
governmental conduct can be classified as ‘procedural.’ Many
injuries caused by governmental conduct, therefore, are categorizable
at some level of generality as ‘procedural’ injuries.”486 According to
the dissenters, “some classes of procedural duties are so enmeshed
with the prevention of a substantive, concrete harm that an
individual plaintiff may be able to demonstrate a sufficient likelihood
of injury just through the breach of that procedural duty.”487
Thus, all agree procedural breaches can lead to standing as long as
the procedural norm protects a “concrete interest”488 or if there is “an
inextricable link between procedural and substantive harm”489—and
thus the plaintiff’s individual self-determination is threatened.
Congress was only barred from naming the citizen a “public
procurator” by the Supreme Court, which thus limited the influence
of the judiciary to its original task: protecting individual rights.490
There is no disagreement on whether procedural administrative
rights can confer standing.491 Lujan thus would have been decided
differently if the plaintiffs had argued that a right to participate in a
rulemaking proceeding was breached. Accordingly, in later cases,
environmental special interest groups possessed standing.492 The
482 Lujan, 504 U.S. at 573. This understanding was later upheld in Utah v. Evans, 536 U.S.
452, 459 (2002) and Horne v. Flores, 557 U.S. 433, 445 (2009).
483 Lujan, 504 U.S. at 562–63, 578.
484 See id. at 601 (Blackmun, J., dissenting).
485 Id. at 573 n.8 (majority opinion).
486 Id. at 601–02 (Blackmun, J., dissenting).
487 Id. at 605.
488 See id. at 572, 573 n.8 (majority opinion).
489 Id. at 605 (Blackmun, J., dissenting).
490 See id. at 576–77 (majority opinion) (quoting Stark v. Wickard, 321 U.S. 288, 309–10
(1944)).
491 Id. at 572, 601–02.
492 See, e.g., Ctr. for Biological Diversity v. United States Dep’t of the Interior, 563 F.3d 466,
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alleged breach of procedural norm suffices, as long as the plaintiff
shows “that the government act performed without the procedure in
question will cause a distinct risk to a particularized interest of the
plaintiff.”493 Thus, “‘a procedural-rights plaintiff must show not only
that the defendant’s acts omitted some procedural requirement, but
also that it is substantially probable that the procedural breach will
cause the essential injury to the plaintiff’s own interest.’”494 Nearly
any interest can be named, for example, “‘the desire to use or observe
an animal species, even for purely esthetic purposes, is undeniably a
cognizable interest for purpose of standing.’”495
This corresponds to the rather broad standing identified earlier.
To correct this broad standing, the Court of Appeals for the D.C.
Circuit has developed a causation requirement, which mirrors the
harmless error rule: “To demonstrate standing, then, a proceduralrights plaintiff must show not only that the defendant’s acts omitted
some procedural requirement, but also that it is substantially
probable that the procedural breach will cause the essential injury to
the plaintiff’s own interest.”496 If one accepts this argument as put
forward, 5 U.S.C. § 706(2)(D), which extends the scope of review to
procedural laws, would be “effectively eliminate[d],”497 as no plaintiff
would be able to prove causation. The same would be true for 5
U.S.C. § 706(2)(A), as the arbitrary and capricious standard is
understood as (quasi-)procedural.498
Thus, the causation
requirement must be read as putting the burden of proof on the
agency:
A plaintiff who alleges a deprivation of a procedural protection
to which he is entitled never has to prove that if he had
received the procedure the substantive result would have been
altered. All that is necessary is to show that the procedural
step was connected to the substantive result.499
This approach can also find some basis in the Lujan decision, where
the Supreme Court held that “[t]here is this much truth to the
479 (2009).
493 Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (citing Lujan, 504 U.S.
at 572–73; Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 223 (1974); Capital
Legal Found. v. Commodity Credit Corp., 711 F.2d 253, 258 (D.C. Cir. 1983)).
494 Ctr. for Biological Diversity, 563 F.3d at 479 (quoting Bentsen, 94 F.3d at 664–65).
495 Id. at 479 (quoting Lujan, 504 U.S. at 562–63).
496 Bentsen, 94 F.3d at 664–65; see supra note 437 and accompanying text.
497 Cynthia R. Farina, Standing, in A GUIDE TO JUDICIAL AND POLITICAL REVIEW OF
FEDERAL AGENCIES, supra note 368, at 46.
498 Garland, supra note 382, at 525.
499 Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir. 2002).
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assertion that ‘procedural rights’ are special: the person who has been
accorded a procedural right to protect his concrete interests can
assert that right without meeting all the normal standards for
redressability and immediacy.”500
Procedural rights are even more special if “the plaintiff is suing to
enforce a procedural right that has not been made contingent on the
plaintiff’s having such an interest. The most ubiquitous APA
example . . . may be § 553(c)’s provision for adequate notice of, and
opportunity to comment upon, a proposed rule.”501 This rule does not
depend upon a substantive interest of the commentator, and thus the
plaintiff possesses standing as long as he or she sought to participate
in the administrative proceeding.502
4. Conclusion: Balancing Judicial Review and Standing
From the separation of powers, it follows that courts first and
foremost protect individual self-determination and the rule of law
while respecting the democratic process and outcome of the
proceedings of collective self-determination.503 This balance is struck
on the admissibility and merits level.504 While no coherent approach
by the courts is displayed in the balancing of the different
components, in the end they match up to a rather balanced result.
On the one hand, by deferring to the agencies the competence to
interpret statutes, the courts limit their ability to protect individual
self-determination.505
On the other hand, everybody whose
participation rights on the administrative level have been breached
possesses standing.506 Other procedural rights confer standing if a
concrete interest is at stake.507 Although this is a rather wide
understanding of standing, it protects individual self-determination,
keeps “public procurators” at bay and allows for collective selfdetermination. In addition, although the hard-look doctrine is
Lujan, 504 U.S. at 572 n.7.
Farina, supra note 497, at 35.
502 Id. at 35, 36 (citing Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d
1534, 1537 (9th Cir.1993) (“The environmental groups have Article III standing if for no other
reason than that they allege procedural violations in an agency process in which they
participated.”). But cf. Lujan, 504 U.S. at 573–74 (“[The Court] ha[s] consistently held that a
plaintiff raising only a generally available grievance about government . . . does not state an
Article III case or controversy.”).
503 See supra text accompanying notes 457–58.
504 See discussion supra Parts V.C.1–2 and text accompanying notes 399–402.
505 See supra text accompanying notes 396–402.
506 See supra text accompanying notes 488–93.
507 See supra text accompanying notes 484–88.
500
501
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primarily aimed at controlling the process of collective selfdetermination, it has been limited since 2009, as political issues have
been admitted to the process.508 It also protects individual selfdetermination through scrutinizing procedural rights.509 Thus, in the
end, the judiciary finds the right balance of ensuring individual selfdetermination while respecting collective self-determination.
To conclude, participation in the judicial process involves only the
plaintiff who is injured in his rights and interests. He is not allowed
to decide for himself, but only to make himself heard and have his
case considered and decided by the court. Participation on the
judicial level thus works according to the constitutional theory of
imperative participation laid out above. Direct judicial review by
individuals on the grounds of the infringement of participatory rights
is well known, legal standing is relatively broad, and the scope of
review allows for protection of individual self-determination.
VI. THE POWER OF THE CONSTITUTIONAL THEORY OF IMPERATIVE
PARTICIPATION
To wrap it up, the constitutional theory of imperative participation
conceptualizes participation and makes the United States
Constitution’s implicit rules on participation explicit. It shows who
must be able to participate and how much influence this participation
must possess in order to add to the legitimacy of the exercise of public
authority. The litmus test of delegated rulemaking proves that
theory right.
Participation according to the United States Constitution needs to
be spelled out as follows: First, everybody is able to participate on the
legislative level, either indirectly via elections or directly via forms of
direct democracy. Direct democracy does not exist on the United
States federal level, but only on the state level; here is room for
improvement. Second, rules will be made by the executive. However,
the public—and not only those individuals who are directly affected—
can give comments on the issue, which need to be taken into
consideration. Third, with regard to judicial review, those whose
participatory rights have been infringed possess standing to
challenge the executive proceedings. These criteria are not only the
limits of participation but should be understood as its ideal, following
from the principles of democracy and the rule of law as balanced by
508
509
See supra notes 450–52, 455–57 and accompanying text.
See supra text accompanying notes 453–54.
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