Americans often credit\u2014or blame\u2014Congress for the laws and policies that govern their lives. But Congress enacts broad statutes that give federal administrative agencies the primary responsibility for making and enforcing the regulations that control American society. These administrative agencies lack the political accountability of those in public office. To address this democratic deficit, an agency seeking to adopt a new regulation must publish a notice of proposed rulemaking and provide an opportunity for the public to comment on the proposal. Heralded as \u201cone of the greatest inventions of modern government,\u201d the Administrative Procedure Act\u2019s (APA) notice-and-comment rulemaking procedure is understood primarily as a means of legitimating administrative regulation by holding agencies democratically accountable to the public. This understanding is wrong.<\/p>\n\n\n\n
This Article is the first to examine the pre-APA administrative practices that inspired the APA\u2019s informal rulemaking provisions and show that those practices were not about democratic accountability or legitimacy. Instead, they were concerned with the targeted solicitation of views from the representatives of organized interest groups to inform the agency\u2019s expert judgment. Congress, however, built a more democratic framework atop the foundation established by these pre-APA administrative practices. Congress also expected that agencies and courts would each contribute, in their own way, to the future elaboration and evolution of the APA\u2019s minimal procedural requirements. The analysis reveals that what modern administrative law identifies as pathologies in informal rulemaking are natural\u2014perhaps even intended\u2014consequences of the APA\u2019s statutory design. It also offers a more nuanced account of the purposes of the APA\u2019s notice- and-comment provisions and further legitimates both agency procedural discretion and judicial common law. The Article concludes that the vision of informal rulemaking that agencies and courts have constructed based on Section 553\u2019s skeletal provisions vindicates Congress\u2019s intentions and is preferable to a vision bound by rulemaking\u2019s undemocratic roots.<\/p>\n\n\n\n