The Lost English Roots of Notice-and-Comment Rulemaking
abstract. Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the 1946 Administrative Procedure Act’s “most important idea.” But its historical origins are obscure. Scholars have variously suggested that it grew out of the constitutionally sanctioned practice of congressional petitioning, organically developed from the practices of nineteenth-century agencies, or was influenced by German conceptions of administrative rulemaking.
These histories, however, are incomplete. Using original archival research, this Article demonstrates that notice-and-comment rulemaking was the product of a series of American transplantations of English rulemaking procedures that developed in the late nineteenth and early twentieth centuries. In the New Deal Era, influential American reformers tracked important developments in English rulemaking as they grappled with the rapidly changing American legal ecosystem. Yet, as this Article emphasizes, Americans only partially adopted the English procedural framework. While they transplanted the “notice” and “comment” dimensions of English procedure, the Americans ultimately decided not to import a legislative veto, which was a critical part of rulemaking procedures in England.
By offering a revisionist account of the origins of notice-and-comment rulemaking, this Article makes two contributions. First, it takes an initial step toward recovering a largely forgotten world of Anglo-American administrative law. Second, it illuminates current debates about the legitimacy of notice-and-comment rulemaking. With many current critiques of notice-and-comment rulemaking centering on the procedure’s supposed lack of democratic accountability, the history this Article traces pushes us to ask whether belatedly transplanting an English-style legislative veto would legitimate the procedure.
author. Raoul Berger-Mark DeWolfe Howe Fellow in Legal History, Harvard Law School; Ph.D. Candidate, Harvard University, Department of History. For comments and conversation, thanks to José Argueta Funes, Maureen Brady, Emily S. Bremer, Guy-Uriel Charles, Ryan D. Doerfler, Blake Emerson, Daniel S. Farbman, Noah Feldman, Elizabeth Fisher, Jacob Gersen, Tom Ginsburg, Jon Gould, Joanna Grisinger, Christopher S. Havasy, Michael J. Klarman, Peter Lindseth, Edgar Melgar, Samuel Moyn, Gerald L. Neuman, Nicholas R. Parrillo, Kate Redburn, Daphna Renan, Noah A. Rosenblum, Jordan Rudinsky, Michaeljit Sandhu, Reuel Schiller, Matthew C. Stephenson, Josef Stern, Oren Tamir, Karen Tani, Mark Tushnet, Christopher J. Walker, and the participants at the Administrative Law New Scholarship Roundtable. Special thanks to Daniel R. Ernst for generously reading several drafts of this Article and for sharing some of his immense knowledge about the archives and legal history of the New Deal with me. Finally, thank you to Rosemary Coskrey, Lily Moore-Eissenberg, Zach Spitz, and the rest of the team at the Yale Law Journal for exceptional editorial support.
Introduction
Notice-and-comment rulemaking has seen better days. Enshrined in Section 553 of the 1946 Administrative Procedure Act (APA),1 notice-and-comment rulemaking (also known as informal rulemaking) has gradually evolved into a cornerstone of modern American governance.2 Yet over the past decade, like much of the current administrative state, it has come “under siege.”3
On the right, the procedure has been viewed with increasingly deep suspicion. This mistrust has stemmed from a growing concern that Congress’s delegation of power to administrative bodies violates an original and formal tripartite separation-of-powers principle that “basic policy decisions governing society are to be made by the Legislature.”4 With a receptive audience among many of the current Supreme Court Justices (who are also deeply skeptical of regulation and the modern administrative state), this unease has cast a long shadow on the constitutionality of many regulations, including those promulgated through notice-and-comment procedures.5 Occupied with these constitutional concerns, the Court has come to assign the actual procedures of informal rulemaking little intrinsic value. As it signaled in its 2020 decision in Little Sisters of the Poor—its most recent pronouncement on the value of notice-and-comment rulemaking—so long as an agency “checks the box[]”6 and gives the public a nominal opportunity to participate, courts should not ask whether this participation meaningfully informed the final regulation.7 Whereas courts previously insisted that the procedure’s participatory character was essential to legitimating regulations,8 now the Court has indicated that it does not always care about ensuring that public participation plays a meaningful role in rulemaking.9
If the right has foregrounded informal rulemaking’s suspect constitutional status, the left has homed in on the “democracy deficit” of the procedure when put into action.10 Not too long ago, the procedure was celebrated as participatory,11 representative,12 deliberative,13 transparent,14 and relatively egalitarian.15 Now it has regularly been found wanting on all of these counts.16
Whether the days of notice-and-comment rulemaking—as we know it—are numbered is anyone’s guess. But in the face of this confluence of constitutional and democratic critiques, it is safe to say that informal rulemaking no longer enjoys the support that it once had. Administrative-law scholar Kenneth Culp Davis once famously termed it “one of the greatest innovations of modern government.”17 Now it suffers from “the extended sense of crisis” that has long plagued other dimensions of the administrative state.18
This crisis has led scholars studying these other facets of administrative law on a search for origins, to understand the initial aims and purposes of the multiple components of our modern administrative state.19 The gamble is that by recovering these procedures’ original visions, we can assuage anxieties about the purported illegitimacy of the administrative state today and find a way to guide administrative practice back toward legitimacy. One result of this work is that we are living through a renaissance of scholarship on the history of American administrative law. Yet oddly, despite this revived interest, we still do not fully understand how and why notice-and-comment rulemaking, once termed the APA’s “most important idea,” came into being.20 This is not to say that accounts of notice-and-comment rulemaking’s history do not exist in the literature. They do, but they are incomplete. This is true of accounts plumbing the procedure’s deep genealogy and those exploring its proximate inspirations.
We know that, despite its novelty, the procedure did not emerge out of thin air when it became part of the APA in 1946. But when and where it originated are matters of disagreement. Professor Maggie Blackhawk has suggested that its roots lie in the constitutionally sanctioned practice of petitioning that predates 1789.21 Professor Jerry L. Mashaw has singled out one mid-nineteenth-century agency that developed and deployed a procedure that partially resembles notice-and-comment rulemaking.22 Professor Blake Emerson has offered a third data point, directing attention to procedures used during the Progressive Era.23 These accounts do not necessarily exclude one another—they could be parts of one overarching narrative—but the fact that they locate the origins of the procedure at different points in a hundred-year span underscores the lack of clarity that hovers over the procedure’s history. Further obscuring how the procedure came about, they also disagree over whether it was indigenous to the United States or a foreign import. Blackhawk and Mashaw insist that the procedure originated and developed incrementally in the United States.24 Emerson is more receptive to the idea that the procedure owes its existence, at least in part, to German Hegelian influences on late-nineteenth-century American legal ideas and institutions.25
The accounts that describe the sequence of events that directly led to the enactment of notice-and-comment rulemaking in 1946 raise other questions.26 It is widely agreed that the procedure was publicly proposed for the first time in the 1941 final report of the Attorney General’s Committee on Administrative Procedure (AG’s Committee) and, specifically, in the minority’s “additional views and recommendations.”27 Created in 1939, the Committee was tasked with studying the actual procedural workings of the myriad federal agencies that constituted the New Deal Era administrative state, or as Professor Joanna Grisinger has put it, examining “administrative law not just on the books but in action.”28 Given that the Committee’s research staff issued twenty-seven accompanying monographs detailing agencies’ practices,29 it is unsurprising that a number of scholars have looked to these documents as the source of the Committee’s ensuing proposals. As Grisinger and Professor Emily S. Bremer have independently argued, these monographs not only illuminated existing agency practices, but they also informed—or, according to Bremer, “inspired”—the Committee’s proposals, including notice-and-comment rulemaking.30
Nonetheless, these explanations paper over a number of questions and even raise new ones. To begin with, if the procedure emerged from the monographs—Bremer has argued that the monographs provided “the ‘intellectual foundation’ for what became the APA”31—why was it that on multiple occasions, several members of the Committee distanced themselves from these documents?32 That these accompanying studies laid the groundwork for notice-and-comment rulemaking—and were not, as Mashaw put it elsewhere, primarily intended for “burying the critics in facts”—is therefore not at all clear.33
Beyond this, the widely held notion that it was the minority’s “conservative” bent that led it to propose informal rulemaking seems questionable.34 This is especially the case when it comes to Carl McFarland, the former Justice Department official credited as being instrumental in bringing about informal rulemaking and, later, getting the APA passed and signed into law.35 While little is known about him, McFarland appears outside of his work on the APA as a key figure in conceiving and advancing President Franklin D. Roosevelt’s court-packing plan.36 This was quite incongruous with mainstream “conservative” views, to put it mildly. The enigma of McFarland casts at least some doubt on this understanding of the politics of the AG’s Committee and its proposals, including that of notice-and-comment rulemaking.
In sum, the existing histories of notice-and-comment rulemaking either depict its origins in too-broad strokes or are premised on somewhat shaky and incomplete evidence.
One reason for these deficiencies might be that, in the broader story of the winding path toward the passage of the APA, the tale of informal rulemaking has too often been relegated to a minor role. As many have noted, adjudication and ratemaking were the primary modes of administrative action during the New Deal Era.37 These modes of administration, along with the evergreen topic of judicial review, have as a result received most of the attention of historians studying the emergence of modern administration. Even though much time has passed since rulemaking emerged as the staple policymaking tool of administrative agencies in the late 1950s and early 1960s, historians have still struggled to understand the procedure’s early history.38
Perhaps we have been looking in the wrong places. As is true for much of American legal history, a guiding assumption in the history of American administrative law is that important changes and innovations developed endogenously.39 Granted, legal historians have recognized the German influences on Progressive Era thought in the United States, but their work has centered on the deep impact of the Rechtsstaat40 on individual thinkers.41 Yet their work has not demonstrated how this influence, however important, translated into institutional practices. The most likely reason for this is that it most often did not. As Professor Daniel R. Ernst has shown, for all of the Progressive Era interest in German administrative law, the Rechtsstaat model, which sought to constrain administrative discretion through narrow legislative grants of power and was promoted by the likes of Professor Ernst Freund,42 ultimately lost out to a competing Anglo-American model, which allowed for administrative discretion so long as it was subject to ex post judicial review, in the 1920s and 1930s.43 Consequently, while German influences are undoubtedly important in understanding administrative law’s early development among American intellectuals, the fact that the influences ended in a “transatlantic shipwreck”44 shows that they did not create the lasting institutional and procedural practices that now define American administrative law, including informal rulemaking.45 With so many questions about the history of notice-and-comment rulemaking unresolved, it is incumbent on us to look elsewhere for its origins.
This Article excavates the origins of notice-and-comment rulemaking by redirecting attention to the late-nineteenth- and early-twentieth-century transatlantic world of Anglo-American law.46Drawing on original archival sources from ten archives in the United States and England, as well as on extensive published sources, it argues that notice-and-comment rulemaking emerged from this vibrant and largely forgotten universe. Throughout this period, American jurists, legal scholars, and legislators acutely felt that the United States was lagging behind England in developing a body of law that would control and standardize the administrative state. This was especially the case with rulemaking, more regularly known in England as delegated lawmaking. In contrast to its relatively sporadic use in the United States during this period, rulemaking served as an important form of English administrative action and received the bulk of attention when it came to crafting procedural guardrails. Keenly aware of the differences between the constitutional systems in the United States and England, Americans found these procedures appealing—to an extent. They therefore adopted and adapted this mechanism in a series of transplantations in the mid-1930s and early 1940s. The result was notice-and-comment rulemaking as we know it.
Part I reconstructs this transatlantic story beginning with its point of origin: England. When Parliament enacted the Rules Publication Act 1893, it imposed three obligations on administrative bodies. It required them, first, to publicize proposed regulations and consult with entities likely to be affected by the rules; second, to afford Parliament an opportunity to approve or reject the formulated piece of delegated legislation through “laying procedures”; and third, to publish finalized regulations. Not only did the informal consultations help administrative bodies gather pertinent information from regulated entities, but they were also critical in getting interest groups to assent to the proposed regulations. The laying procedures, on the other hand, secured democratic legitimacy for the regulations, ensuring that Parliament—generally taken to be constitutionally supreme—remained the true lawmaker, if only in a nominal sense.
As delegated legislation came to be utilized more and more in England in the early decades of the twentieth century—and especially during and after the First World War—the framework of the Rules Publication Act 1893 came under increasing scrutiny. In response, the government established the Committee on Ministers’ Powers (the Donoughmore Committee) to examine the workings of the English administrative state. When it issued its final report in 1932, the Donoughmore Committee dismissed claims that a new administrative despotism was rising. At the same time, it made a number of recommendations for improving the Rules Publication Act 1893, including eliminating its myriad loopholes and standardizing and expanding the consultation, laying, and publication requirements. After several years of high emotions, consensus over the procedural framework governing delegated legislation finally seemed near.
In the end, little came of these recommendations in England until after the Second World War. But their impact across the ocean in the United States was felt far more immediately and strongly. As Part II details, between 1935 and 1946, Americans imported several key components of the English procedural framework governing delegated legislation and the Donoughmore Committee’s recommended reforms. The 1935 Federal Register Act required that all finalized regulations be published in the newly created Federal Register and was explicitly modeled upon the parallel requirement in the Rules Publication Act 1893. Six years later, the minority’s recommendations in the final report of the AG’s Committee planted the seed of notice-and-comment rulemaking. Its first two recommendations—to publicize proposed regulations and solicit public comments—were intended to build upon and expand the corresponding provisions of the Rules Publication Act. Its third requirement, that agencies issue final rules, augmented the earlier obligation put forth in the 1935 Federal Register Act. Even as the report remained silent about the origins of this procedural cocktail, traces of its English inspirations are visible just beneath its surface.
Latent English influence can also be seen behind the Committee’s inductive approach to studying the American administrative state and the minority’s insistence that these rulemaking requirements apply transsubstantively—that is, across the wide swath of federal agencies. Like other New Deal initiatives designed to rationalize and streamline previously complex and uneven procedural regimes, the push for uniform administrative procedural requirements was inspired by England. When the APA came into effect in 1946, it bore these various English fingerprints.
The Rules Publication Act 1893’s laying procedures and the Donoughmore Committee’s proposed reforms of these procedures, in contrast, did not make it to the United States. This was not for lack of interest. In the 1930s, Roscoe Pound, James M. Landis, and other prominent American lawyers representing a variety of stances on the administrative state called for an increase in congressional scrutiny over rulemaking and even the adoption of procedures akin to English laying requirements. The AG’s Committee, in turn, considered the measure—only to reject it. This decision was a result of several factors. The Committee singled out the procedure’s questionable utility in providing meaningful oversight: “Experience, both in England and in this country, indicates that lack of desire, rather than lack of opportunity, has accounted for the absence of legislative interference with administrative regulations.”47 Beyond this skepticism, the ultimate disinterest in adopting laying procedures is also attributable to the structural differences between England’s parliamentary system and the United States’s separation-of-powers system, the concomitant differences in the role that laying procedures would play, and the demise of the nondelegation doctrine. In the wake of the decision to forgo laying procedures, informal rulemaking assumed the form that is still in place today.
This history has a number of implications. Part III discusses two. First, this history complicates the existing accounts of notice-and-comment rulemaking’s origins—and our broader understanding of the American administrative state. As this Article shows, the foreign legal system that had the deepest influence on the actual configuration of American administrative rulemaking was that of England.48 Critics of rulemaking such as Professor Gary Lawson have likened it to “the kind of prerogative or rump legislation that both British and American revolutionaries worked hard to abolish.”49 But in fact, informal rulemaking developed from within the common-law tradition. Indeed, it developed within a broader and now largely lost world of Anglo-American administrative law. Recovering this lost world is necessary to understand fully how the “fundamental charter” of the administrative state, the APA, emerged.50
Second, this history contributes to contemporary discussions about notice-and-comment rulemaking’s future. This Article emphasizes the fact that American informal rulemaking was only a partial transplantation of English procedures. This fact has proved fateful. On the one hand, this partial transplantation has given rise to notice-and-comment rulemaking, a centerpiece of American administrative governance that was part of the broader “quasi-constitutional” settlement embodied in the APA.51 On the other hand, it may be one cause of the perennial debates over American administrative law’s supposed legitimacy deficit. In light of this history, one might reasonably ask whether it would be wise to complete the transatlantic transplantation and belatedly enact laying procedures in the United States. Without offering a definitive (or satisfying) solution going forward, Part III considers what the APA’s history might tell us about the range of possible answers to that question. Ultimately, by recovering one facet of the lost universe of administrative law and the 1946 APA, this Article aims to reveal the buried roots of our contemporary institutions and enrich the ongoing conversation about ways to improve them.