Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element
Imagine a visitor who seeks to catalog the variety of written texts American government uses to communicate its powers and its citizens' rights and obligations. She might organize those texts into the following pyramid:
- A Constitution, adopted by "the people"
- Hundreds of statutes, adopted by an elected Congress
- Thousands of regulations, adopted by politically responsible executive officials
- Tens of thousands of interpretations and other guidance documents, issued by responsible bureaus
- Countless advice letters, press releases, and other statements of understanding, generated by individual bureaucrats
On inquiry she would find that we understand passably well the ordering and influence of the top three layers of this structure. Our legal system treats each of them as binding text, subject only to the requirements that it be authorized by the superior authority and appropriately adopted following designated procedures; if valid, each of them has legislative effect on government and citizen alike, until displaced by another text validly adopted at the same or a higher level. She would find, too, that the innumerable items at the base of this pyramid, while often in fact influential on private conduct, are denied any formal jural effect. It is at the fourth level that she would find confusion – confusion whether these "publication rules," as we will call them for reasons that will presently appear, are legitimate instruments of agency policy or a ruse to evade the higher procedural obligations associated with adopting regulations; confusion whether an agency may give them any jural effect and, if so, to what degree; and confusion whether and to what extent they must be respected by the courts.