Re-Inventing Rulemaking

Bob Anthony and Tom McGarity both maki a number of important,perceptive points, and I find myself in substantial agreement witheach of them. have only two principal disagreements with Bob Anthony. First, Ibelieve that a court should not go behind the objective terms of a statementof agency policy to speculate about whether the statement was "reallyintended" to bind the public. If by its terms an agency's generalstatement of agency policy is limited to establishing general policies andexplicitly states that the policies must be justified de novo in subsequentapplications where the policies are challenged, then a court should notinvalidate the policies-on the grounds that, contrary to what the agency'sstatement says it is, the court thinks that it is "really" or "practically" a"non-rule rule" made without benefit of proper rulemaking procedures., I believe that courts should not attempt to force all agency policymakinginto the mold of notice-and-comment rulemaking. Noticeand-comment does not always provide genuine public participation inlegislative rulemaking; it is useful primarily as a record-making deviceand is generally employed when a rule is in near-final form.