Public Participation in Nonlegislative Rulemaking

Administrative law presently allows for members of the public to be the subject of arbitrary governmental enforcement proceedings based on rules that are promulgated by a semi-accountable federal bureaucracy. Many nonlegislative rules, rules that are interpretive in nature or provide general policy statements, are lawfully issued under the Administrative Procedure Act without advance public notice or public participation. The proliferation of administrative power and the growing procedural attractiveness of nonlegislative rulemaking as a tool to promulgate rules of increasingly legislative quality has created a tension between administrative agencies’ ability to promulgate rules that can only, if at all, be challenged in the context of adjudication and the public’s right to participate in the rulemaking process. A practical and underutilized mechanism that permits the public to facially challenge such rules is the petitioning provision of the Administrative Procedure Act. The literature does not address this issue in-depth. This Article makes the case for the public’s right to petition agencies for the issuance, amendment, or repeal of nonlegislative rules, and likewise examines the various avenues of judicial review that are available to enforce this right.