In this speech to be given on November 15, 1996, as the American contribution to the week-long conference on administrative law sponsored by the Fundaci6n Estudios de Derecho Administrativo in Caracas, Venezuela, Professor Peter L. Strauss addresses the history and developing political character of rulemaking in federal law over the fifty years since enactment of the Administrative Procedure Act. As a framework, Professor Strauss sets forth a hierarchy of institutional rulemaking, from constitution through informal advising. He then develops his discussion of rulemaking by tracing the federal process of rulemaking through time, beginning with the enactment of the Administrative Procedure Act of 1946 and the formative years of its application. He then turns to the active rulemaking era that began with the administration of John F. Kennedy and ran through the Nixon-Ford administrations. Next, Professor Strauss relates the process of rulemaking during the era of "running against big government" that began with the Carter administration and ran through the Reagan and Bush years. Finally, Professor Strauss considers the present state of rulemaking. He argues that, appropriately, the political character of rulemaking has been receiving increasing attention. For a variety of reasons, today's rulemaking concerns are increasingly with the period before a formal notice of proposed rulemaking has occurred. Regrettably, the developments he chronicles have not been accompanied by concern for their overall effect on the fairness, accuracy, efficiency, and democratic characteristics of what has been a highly useful procedural device. He sees as the result a fairly profound disincentive to use rulemaking, and calls upon Congress and the courts for more careful assessment of the need for and impact of various elements of their approaches.
Peter L. Strauss,
From Expertise to Politics: The Transformation of American Rulemaking,
Wake Forest L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/298