Class 19: Policymaking Through Rulemaking
When agencies make rules, what rulemaking procedures are they required by law to follow? And what are the sources of law that create these procedural obligations?
Reading:
APA § 4, 5 U.S.C. § 553
United States v. Nova Scotia Food Products (728-47)
Vermont Yankee v. NRDC (883-90)
As you read, consider the following questions:
If Congress had enacted a statute to regulate the processing of smoked fish, it wouldn’t have to provide elaborate reasons accompanying the legislation. Why does the Court in Nova Scotia treat the FDA so differently?
Can the holding in Vermont Yankee be squared with the holding in Nova Scotia? Or is the Court simply reversing course.
Why might Congress have wanted to impose the APA’s procedural requirements on rulemaking activity by agencies? Why might it be socially valuable to do so?
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