An administrative agency delegated some task – protect the environment, assure the integrity of the securities markets, improve auto safety – might carry out that obligation by adopting a rule, bringing or deciding a case, or announcing its interpretation of the statute. Although agencies are unique institutions in this respect, this state of affairs generates little comment. This Article aims to rectify that by identifying, evaluating, and coming to terms with the phenomenon of agency choice of policymaking form. That phenomenon can be simply stated: The typical administrative agency is authorized to use a range of distinct policymaking forms to effectuate its statutory mandate and its choice about which tool to rely on appears, at first glance at least, to be unregulated by courts.
Part I of the Article will discuss the policymaking tools that statutes and case law typically make available, the significance of the choice among them, and the varying choices that agencies make.
Part II takes up the judicial reaction to agency choices of procedure. That judicial reaction, at least at first blush, can be simply described: hands-off. An agency can choose among its available policymaking tools and a court will not require it to provide an explanation for its choice. This judicial reaction is perplexing because it is out of step with the rest of the law of judicial review of agency action. This Part examines possible reasons why courts might treat agency choices of procedure differently than other exercises of discretion, but dismisses each of them as implausible. After setting forth this puzzle in the structure of the law, this Part offers an explanation for it. That explanation is rooted in the fact that courts have a surprising degree of control over the consequences of an agency’s choice of form. By adjusting the consequences of choosing one form or another, courts have the opportunity to respond to whatever concerns they might have about an agency’s choice. Courts thus review agency choices of procedure, albeit in a roundabout way.
Parts I and II are devoted to identifying and analyzing the phenomenon of agency choice of policymaking form. That task is the main object of the Article because these features of administrative law and practice are not now considered worthy of notice. After noticing them, though, the next step is to come to terms with them. Part III of the Article starts that task.