Also known as: rule-making · rule making
Written by attorneys · grounded in primary & secondary sources — see below
An administrative process by which an agency formulates, amends, or repeals rules that carry the force of law. The process typically begins with notice of a proposed rule, followed by an opportunity for public comment, and concludes with publication of a final rule.
Congress enacted a statute directing the Department of Transportation to issue regulations advancing modern industry by setting production methods and output quotas. The Department published detailed rules governing factory operations nationwide. Ronald Reed, owner of a manufacturing plant, challenged the rules on the ground that the statute supplied no intelligible principle to guide the agency's discretion.
The board of a common-interest community adopted a rule limiting the height of fences on individual lots to protect views from the common areas. Riley Rivera, a lot owner, objected that the rule was unreasonable and exceeded the board's discretionary powers. Rivera bore the burden of proving both the breach and resulting harm.
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The Nuclear Regulatory Commission published a proposed rule on reactor safety standards in the Federal Register and invited written comments. After considering the submissions, the agency issued a final rule without holding an oral hearing. Vermont Yankee Nuclear Power Corp. challenged the procedure as inadequate under the APA.
The independent counsel issued regulations governing the conduct of investigations into executive branch officials. Theodore B. Olson challenged the counsel's authority, arguing that the rulemaking function was quasi-legislative and therefore incompatible with the counsel's limited tenure and removal protections.
The Tahoe Regional Planning Agency adopted a temporary moratorium on new building permits while it revised its land-use plan. Property owners argued that the extended delay constituted a regulatory taking. The agency defended the action as a legitimate exercise of its rulemaking authority to protect the lake's environment.
The Immigration and Naturalization Service suspended deportation of Jagdish Rai Chadha pursuant to regulations issued under a statute containing a one-house veto provision. The House of Representatives passed a resolution overturning the suspension without Senate concurrence or presentment to the President. Chadha challenged the resolution as an invalid exercise of legislative power over agency rulemaking.
Rulemaking creates prospective legal norms that govern categories of conduct, while adjudication resolves retrospective disputes affecting specific parties. The APA therefore imposes notice-and-comment procedures for rulemaking and trial-type procedures for formal adjudication.
Supporting sources
Congress may delegate rulemaking authority provided the statute supplies an intelligible principle that guides and cabins agency discretion. A delegation lacking any such principle transfers core legislative power and is unconstitutional.
Supporting sources
An association possesses an implied power to make reasonable rules protecting common property and the reasonable use and enjoyment of neighboring lots. Rules adopted by the board must satisfy a reasonableness standard. Members challenging them bear the burden of proving breach and harm.
…Commission, see 15 U. S. C. § 2053(a), which engage substantially in what has been called the "quasi-legislative activity" of rulemaking, and for members of Article I courts, such as the Court of Military Appeals, see 10 U. S. C. § 867(a)(2), who engage in the "quasi-judicial" function of adjudication. It has often been…