Document Type

Article

Publication Date

2006

Abstract

This article is organized as follows. Part I reviews the history of the Accardi principle in the Supreme Court. We learn that the Court has intimated three different theories about the source of the Accardi principle, and has left many questions about its dimensions unanswered. Part II surveys the use of the principle by the D.C. Circuit. This provides additional insights into how the Accardi principle works in practice, including the importance of questions about the meaning of agency regulations and whether agency regulations can render otherwise unreviewable agency action subject to judicial review. Part III seeks to restate the Accardi principle in a manner that is faithful to the general thrust of the decided cases and overarching principles of administrative law. The restatement I propose tracks the conventional wisdom about when agency rules are "legislative" and the emerging understanding about when agency interpretations have the "force of law" and hence are entitled to Chevron deference. The key to unraveling the mysteries about the Accardi principle, from this perspective, is understanding the criteria for identifying legislative regulations and how such regulations are enforced under the Administrative Procedure Act and the Due Process Clause. Part IV offers some tentative thoughts about the utility of the Accardi principle. A brief conclusion follows.

Disciplines

Administrative Law | Law

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