Guide · Administrative Law

Agency Rulemaking and Judicial Review: A Comprehensive Guide to Comments, Standards of Review, and Vacatur

5 U.S.C. § 551

Type
Guide
Jurisdiction
National
Date
2023-10-21
Topic
Administrative Law

This guide states the law governing federal agency rulemaking, adjudication, and judicial review. Part 1 covers the Administrative Procedure Act's architecture and the definitions that decide most threshold disputes. Parts 2 and 3 cover notice-and-comment rulemaking, its content requirements, the logical outgrowth and statement-of-basis obligations, the exemptions including good cause, and the distinction among legislative rules, interpretive rules, and guidance documents. Part 4 covers the analytical overlays — centralized regulatory review, the Regulatory Flexibility Act, the Paperwork Reduction Act, and the Congressional Review Act. Parts 5 and 6 cover formal and informal adjudication, licensing protections, and the reviewability, standing, ripeness, finality, exhaustion, and timing questions that decide whether a challenge is heard. Parts 7 and 8 cover the standards of review under section 706, the end of Chevron deference after Loper Bright, the narrowed Auer doctrine, the major questions doctrine, the administrative record, and the available remedies. Later parts address agency delay, petitions for rulemaking, and state and local administrative practice.

Agency Rulemaking and Judicial Review: A Comprehensive Guide to Comments, Standards of Review, and Vacatur

Administrative Law > Rulemaking and Judicial Review | Published 21 October 2023 - Updated 13 February 2025 | UpLaw - uplaw.us

Part 1 — Architecture

The Administrative Procedure Act supplies definitions at 5 U.S.C. § 551: "agency," "rule," "rule making," "order," "adjudication," "license," "sanction," "relief," and "agency action." These definitions decide most threshold disputes, because whether a document is a rule or an order, and whether it constitutes agency action, determines the applicable procedure and the availability of review.

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