Ex parte communications are nonpublic communications between an agency official and either a person outside the government or inside the government but in a different agency to which the public has not been given notice or a chance to respond. Ex parte communications could include oral or written communications, written correspondence submitted to an agency, or meetings between an agency and stakeholders. In the informal rulemaking context, ex parte communications typically refer to written or oral communications that occur outside of the comment period.
The Administrative Procedure Act (5 U.S.C. §§ 551–559, 701–706) does not prohibit ex parte communications between an agency and an outside party during informal rulemaking. It also does not prohibit ex parte communications between agencies or between an agency and the President or his advisors. Rather, prohibition or regulation of ex parte communications primarily flows from agency-specific statutes, rules, and guidance. Many agencies, however, have no stated policy on ex parte communications during informal rulemaking.
Courts require agencies to include the justification for a rulemaking to be contained in the public rulemaking record. Accordingly, if the ex parte communication forms the basis for the agency's action, judicial interpretations of the APA would require that communication to be reflected in the record. If the communication is not reflected in the record and the record does not otherwise support the agency's action, the rule could be subject to vacatur and remand by a court. A small minority of courts have taken a more critical view of ex parte communications, setting out a per se ban on them. Many of those cases, however, have been limited by subsequent decisions to apply to a relatively small number of informal rulemakings that are akin to quasi-judicial proceedings, such as where an agency regulation awards a valuable privilege to a specific person or entity.
Despite the general absence of statutory and judicial regulation of ex parte communications, whether and to what extent agencies accept and rely on ex parte communications have generated significant debate. To some, ex parte communications in informal rulemaking can provide agencies with valuable information regarding the views of affected parties and potentially increase the democratic legitimacy of the agency's policy. To others, they raise concerns that the agency's ultimate decision was swayed or even determined by nonpublic information that was not subject to scrutiny through the comment process. Even if ultimately not considered by the agency, however, ex parte communications can still create the appearance of undue influence by those with access to agency decisionmakers.
Congress could enact a statute determining how agencies should treat ex parte communications, including setting out requirements for publication and further public comment if the circumstances warranted. Congress could also likely ban ex parte communications outright by barring agencies from considering any ex parte communication.
Congress passed the Administrative Procedure Act (APA) in 1946 to set default standards for agencies to use when engaging in rulemaking or adjudication.1 Congress passed the APA to in part address concerns that agency structures and procedures led to unfair or biased administration.2 Some of these concerns over bias and fairness arose from what are known as ex parte communications.3 Ex parte communications are nonpublic communications between an agency official and either a person outside the government or inside the government but in a different agency to which the public has not been given notice or a chance to respond.4 Ex parte communications could include written or oral communications and could include, for example, written correspondence submitted to an agency or meetings between an agency and stakeholders. These types of communications can create the appearance of improper influence, and in some cases have resulted in courts finding agencies have acted improperly by considering ex parte communications in rulemaking.5
When Congress enacted the APA, it did not include an explicit general ban on ex parte communications.6 Section 5 of the APA as enacted in 1946 (codified at 5 U.S.C. § 554(d)) contains only a partial limitation for a presiding officer during what is known as a "formal" adjudication.7 In 1976, Congress revisited the issue of ex parte communications during its debate of the Government in the Sunshine Act.8 As part of the bill that ultimately became the Government in the Sunshine Act, Congress included an amendment to the APA that prohibited ex parte communications between an "interested person outside of the agency" and "any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process."9 This prohibition, however, only applies to formal rulemakings and adjudications.10 As a result, the APA as amended by the Government in the Sunshine Act bars ex parte communications during formal rulemaking and adjudication, but is silent on ex parte communications that occur during informal rulemaking.11
Unlike formal adjudications and rulemakings under the APA, which resemble trial-like proceedings, informal rulemaking is comparatively simpler. The APA imposes three basic steps, although other statutes and executive orders have added additional steps for certain kinds of rulemakings.12 Moreover, the APA provides for several exceptions to its informal rulemaking provisions.13 If no exception applies, first, an agency must publish in the Federal Register a notice of proposed rulemaking (NPRM, also known as a proposed rule) that states the substance of the proposed rule and includes an initial justification for the proposal.14 Next, that proposal must be subject to a public comment period wherein the agency permits the public to submit their views about the rule.15 Finally, the agency must publish the final rule in the Federal Register with a "concise general statement [of the rule's] basis and purpose" at least 30 days before the rule becomes effective.16
The distinction the APA makes in its treatment of ex parte communications between formal rulemaking and adjudication on one side and informal rulemaking on the other can be attributed to the relative strength of due process (i.e., fairness) concerns in the quasi-judicial proceedings of formal rulemakings and adjudications and the relative weakness of those concerns in the quasi-legislative process created by the APA's informal rulemaking provisions.17 Although not universally held, some have argued that the quasi-legislative process of informal rulemaking raises fewer due process concerns because the product of informal rulemaking—rules—typically promulgate "policy-type rules or standards," while adjudications resolve "disputed facts in particular cases.18
In light of reduced due process concerns, ex parte communications in informal rulemaking can provide agencies with valuable information regarding the views of affected parties and potentially increase the democratic legitimacy of the agency's policy.19 In one court's view, ex parte communications "may enable the agency to win needed support for its program, reduce future enforcement requirements by helping those regulated to anticipate and shape their plans for the future and spur the provision of information which the agency needs."20
Nonetheless, ex parte communications either within the executive branch or between outside interested parties and the agency during the informal rulemaking process can raise concerns that the agency's ultimate decision was swayed or even determined by nonpublic information that was not subject to scrutiny through the comment process.21 Further, some scholars have raised concerns about the influence of regulated parties over agencies, leading some to charge that agencies have been "captured" by the industries that they regulate.22 In some cases, agency reliance on nonpublic information has led to courts finding the agency violated the APA or due process principles.23 Even if ultimately not considered by the agency, however, ex parte communications can still create the appearance of undue influence by those with access to agency decisionmakers.24 For that reason, agencies and courts have at times paid special attention to the potential dangers of ex parte communications.25
In the absence of any explicit prohibition in the APA for informal rulemaking, courts and agencies have taken various approaches to addressing these kinds of communications.26 In general, courts have addressed ex parte communication issues through judicially created doctrines that limit an agency's explanation of its reasons for adopting a rule to the public record the agency compiles during the rulemaking process.27 Thus, information not contained in the record cannot form the basis for the agency's explanation of its actions when those actions are challenged in court.28 While not all agencies have adopted a policy on ex parte communications, some agencies have done so through regulations or guidance.29 Agencies that have adopted a policy commonly permit ex parte communications during informal rulemaking, but require the agency official engaged in the communications to include a summary of the communication in the public rulemaking record.30 Due to the APA's silence, however, ex parte polices can vary significantly across agencies.31
Defining ex parte communications can be difficult. In the broadest terms, ex parte communications can refer to any nonpublic communication made to or from an agency and related to an informal rulemaking. Ex parte communications in the informal rulemaking context typically refer to nonpublic communications between an outside party with an interest in the outcome of the rulemaking and an agency official that is in some way involved in determining the content of the rule.32 In this report, these communications are referred to as external ex parte communications. Less commonly, ex parte communications can sometimes refer to nonpublic communications that occur within the executive branch between the agency conducting the informal rulemaking and another agency or the President and his staff.33 In this report these communications are referred to as internal ex parte communications.
The APA defines ex parte communications as "an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given."34 Neither the APA's definition nor its prohibitions of ex parte communications distinguish between internal or external communications.35 As discussed above, however, the prohibitions apply only to the formal adjudication and rulemaking provisions of the APA. The APA's informal rulemaking provisions have no analogous prohibition.36 As such, the APA's definition is only legally operative when read in conjunction with the prohibitions in §§ 554(d) and 557(d). Nonetheless, the APA's definition of ex parte communications is a useful general description of the phenomenon.37
In addition to the source of the communications, timing is also a factor in defining ex parte communications. In the broadest sense, communications that occur before and after a rulemaking that are not subsequently publicly disclosed are ex parte communications,38 but courts and agencies tend to focus primarily on ex parte communications that occur between the notice of proposed rulemaking and the promulgation of a final rule.39 Communications that occur before the notice of proposed rulemaking is published in the Federal Register or after the rulemaking has concluded are not typically considered by courts as presenting the same concerns as communications during the rulemaking process, and they often do not fall within agency policies that address ex parte communications.40 Nonetheless, some have contended that the distinction between the communications made during rulemaking and those made before or after is an arbitrary one.41 Some argue that the time after a rule has been promulgated is just another way of referring to the time before the agency's next rulemaking, making the timing of ex parte communications irrelevant to whether the communication might influence the substance of a regulation.42 Along these same lines, ex parte communications received before a rulemaking is formally announced or after it has concluded may be more influential than those made during the rulemaking process. As some studies have suggested, agencies may prefer to develop their policies internally with input from outside parties or political appointees before they publicly announce their proposals.43 Ex parte communications during this phase of a rule may be more likely to influence the substance of the rule because the agency is still developing its policy.44 After the proposed rule is published, path dependency may limit the range of alternative policies the agency is willing to consider during the notice and comment period.45
Conversely, some courts and commentators have criticized deeming any communications with agencies during informal rulemaking as "ex parte."46 By one account, informal rulemaking involves only "interested persons," not "parties."47 Applying the term "ex parte" implies an adjudicative decisional structure with "parties" to the proceeding that does not exist in informal rulemaking.48 Unlike an adjudicatory proceeding, rulemaking does not identify parties in advance, nor does it establish conflicting interests among the regulated community.49 Rather, some argue, as a quasi-legislative act, information from any source and at any time is "the life of a notice and comment proceeding" and should be "encouraged."50
As discussed above, the APA does not prohibit ex parte communications during informal rulemaking. In the absence of a prohibition for informal rulemaking, courts have analyzed ex parte communications in light of the APA's requirement for agencies to justify their actions based on the public record they compiled during rulemaking. As a result, federal courts have taken a variety of approaches to policing these kinds of communications, from finding them legally dubious to permissible and even desirable.
The APA is a default procedural statute that applies in the absence of agency-specific statutory procedures.51 Where no other statute applies, the APA subjects all "final agency action" to judicial review.52 Agency action is final when an action is the consummation of the decisionmaking process and "by which 'rights or obligations have been determined,' or from which 'legal consequences will flow.'"53 In the case of informal rulemaking, the consummation of an agency's decisionmaking process is typically the promulgation of a final regulation in the Federal Register.
The APA provides six standards of review for the reviewing court, requiring that a court "shall hold unlawful and set aside agency action, findings, and conclusions" found to violate any one of the six standards.54 One of the most commonly invoked standards by litigants is the "arbitrary and capricious" standard.55 The arbitrary and capricious standard requires that the agency's action be "reasonable and reasonably explained."56 As the Supreme Court once elaborated, it requires "the agency [to] examine the relevant data and articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'"57 To permit courts to engage in this review, however, courts have imposed on agencies a requirement that they compile a public record and justify their actions in light of that record.58 This kind of review is often referred to as record review.59
To facilitate judicial review of an agency's rule, "an agency must 'disclose the basis' of its actions" in the rulemaking record.60 The Supreme Court has determined that "the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained."61 The Court's "reasoned explanation" requirement is meant to ensure agencies offer genuine justifications for their actions "that can be scrutinized by courts and the interested public."62 A court's review of agency action, however, is limited to the record the agency compiled during the rulemaking process.63 Except in rare circumstances, a reviewing court cannot admit new evidence to the record.64 For instance, a "strong showing of bad faith or improper behavior" may justify deposition of agency officials or the admission of extra-record evidence.65 Without such a showing, the validity of the agency's action "must stand or fall on the propriety" of the reasons offered in the record at the time the rule was issued.66 "If the agency's action is not sustainable on the administrative record made, then the [action] must be vacated and the matter remanded to [the agency] for further consideration."67
The reasoned explanation requirement, however, does not mean the agency cannot have other unstated reasons, or that its decision cannot be influenced by political considerations or an administration's priorities.68 Informal rulemaking is not a "rarified technocratic process, unaffected by political considerations."69 The reasoned explanation requirement only necessitates that the record support the agency's publicly stated reasons for its action.70
What constitutes "the record" for the purposes of informal rulemaking, however, has generated decades of litigation.71 Moreover, litigation over the propriety of ex parte communications often arises in the context of disputes over the completeness of the administrative record. Despite the apparently straightforward rule limiting a court's review to the record compiled by the agency, determining which documents should be included in the record can be a difficult task. The Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe held that judicial review "is to be based on the full administrative record that was before the [agency]."72 Unlike formal rulemaking and adjudication, the APA does not require an agency to compile a formal record when it engages in informal rulemaking pursuant to § 553.73 During informal rulemaking an agency does not admit evidence from a defined set of parties participating in the rulemaking as the APA's formal rulemaking provisions require.74 Rather, agencies conducting informal rulemaking consider a wide array of information, ranging from information held by the agency already to information submitted by outside parties during the public comment period.75 The APA itself does not appear to contemplate the creation of a record during informal rulemaking and is otherwise silent on what, if anything, should be included in an informal rulemaking record. Informal rulemaking records submitted to courts when a rule is challenged accordingly have a more open character compared with their formal counterparts. Outside of the general principles courts have created to guide record review cases, there is little statutory guidance on which documents agencies should include in their administrative records when those records are submitted to a court.
The ambiguity over which documents are properly part of the record has in some instances led to disputes over whether the agency has provided the complete record to a court, including any ex parte communications.76 Courts have diverged over whether and under what circumstances ex parte communications should be included in the record in order to document all the information that agency could have potentially relied on. For some courts, disclosure of all or potentially all information is important to ensure the court has the ability to determine the reasonableness of the agency's action.77 Conversely, the majority of courts have held that an agency need only disclose that information on which it relied in making its decision.78 The tension between these two approaches to the completeness of the records goes some way to explain the various approaches courts have taken to ex parte communications in informal rulemaking.79
At bottom, a majority of courts endorse the view that the mere presence of ex parte communications without more is insufficient to cast doubt on the agency's decisionmaking process. Depending on the specific circumstances, however, ex parte communications can be grounds for a reviewing court to vacate and remand an agency rule. If the agency bases its action on information learned in an ex parte communication, but that communication is not recorded in the rulemaking record and the record does not otherwise support the agency's publicly stated reasons, a reviewing court likely would have grounds to vacate and remand the rule back to the agency.80 If, however, an ex parte communication accounts for an unstated reason for the agency's action but the record also supports the agency's publicly stated reasons, a court would likely sustain the agency action.81 Some courts, however, have found fault in the mere presence of ex parte communications, holding that they undermine the public's right to participate in the rulemaking and the agency's explanation for its decision.
Home Box Office, Inc. (HBO) v. Federal Communications Commission (FCC) raised significant concerns about the mere existence of ex parte communications even in the absence of evidence that those communications were the true foundation for the agency's action.82 Decided in 1977 by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), HBO was one of the earliest cases to grapple with ex parte communications during the informal rulemaking process. The HBO case addressed a challenge to the FCC's "pay cable rules," which regulate advertising and programming in paid cable services.83 During the FCC's rulemaking, a number of regulated entities communicated with the FCC regarding the content of its rulemaking, prompting the court to order the FCC to provide an accounting of all ex parte communications made during the rulemaking.84 The accounting indicated that certain regulated entities "pressured" the FCC to adopt particular policies.85
The court did not find evidence that the FCC improperly relied on ex parte communications in promulgating its regulations, but it found the mere presence of these communications indicated that the regulations represented a "compromise among the contending industry forces" rather than an exercise of its "independent discretion in the public interest."86 Although the court ultimately found that the FCC could sustain its action based on the public rulemaking record, the court held that agency officials must refuse to discuss a rulemaking proceeding with any interested party, and if such ex parte communications were made, the agency must publish the contents of the communications in the public record.87 To remedy the presence of ex parte communications in the pay cable rules, the court remanded the record to the FCC so that the FCC could hold an evidentiary hearing to determine the nature and source of all ex parte communications that occurred after the issuance of its notice of proposed rulemaking with instructions to file a supplemental record with the court.88
The court grounded its decision in a particular understanding of the purpose of judicial review of agency rules. "Secrecy," the court held, was inconsistent "with fundamental notions of fairness implicit in due process and with the ideal of reasoned decisionmaking . . . which undergirds all of our administrative law."89 The possible existence of industry preferences secretly communicated to the agency led to concern that there could be an administrative record for the public and another for "those 'in the know.'"90 The court found the existence of these communications so troubling that their mere existence possibly rendered the "public discussion . . . a sham" because there was no opportunity for the public to comment on ex parte communications.91
The court went further, however, holding that the secret nature of these communications also prohibited the court from evaluating whether the ex parte communications constituted the genuine reason for the agency's action. Its obligation to ensure the agency engaged in "reasoned judgment" necessitated that the court, and by extension the public, have access to the "full administrative record."92 Otherwise, the court explained, those participating in the administrative process could not bring relevant information to the attention of reviewing courts and courts could not "test" the agency's action for arbitrariness.93 Without that ability, the court concluded, meaningful judicial review would be impossible.
HBO represents courts at their most skeptical of ex parte communications. In requiring "adversarial commenting," the HBO decision also presents a particular view of the rulemaking process that imports notions of fairness and due process that are more often associated with adjudication rather than informal rulemaking.94
Subsequent court decisions have declined to adopt the full measure of the HBO court's concerns partly because later courts have viewed informal rulemaking in light of its similarities with the legislative process. With some notable exceptions that will be discussed below, courts have broadly not considered the presence of ex parte communications so long as the agency's justification for its action can be sustained on the public rulemaking record. Nonetheless, HBO has never been overruled and remains good law in the D.C. Circuit. Practically, however, subsequent decisions of the D.C. Circuit have construed the HBO decision narrowly to apply to a small subset of agency actions that although are formally rulemakings, have features of an adjudication.
Just over three months after the D.C. Circuit decided HBO, a different three-judge panel of the D.C. Circuit decided Action for Children's Television (ACT) v. FCC, which cast doubt on the breadth of the holding in HBO.95 Like HBO, ACT dealt with allegations of ex parte communications that occurred during an FCC rulemaking. ACT petitioned the FCC to issue regulations that would limit or eliminate commercial advertisements during children's television programming. The FCC subsequently issued a notice of inquiry and a notice of proposed rulemaking, but explained that it might ultimately decide against adopting any regulations. After a notice and comment period, the FCC decided not to adopt specific rules governing children's television programming. During the pendency of the FCC's decision, however, the National Association of Broadcasters (NAB), a private entity, amended its self-regulatory code to address the quantity of and the amount of commercial advertising on children's programming. ACT challenged the FCC's decision not to issue regulations, alleging that NAB and the FCC struck a deal behind closed doors. ACT charged that the alleged negotiation "undermines the administrative process since it denies public participation at every stage of the regulatory process . . . frustrates effective judicial review, and renders the extensive comment-gathering stage 'little more than a sop.'"96
The court rejected ACT's claim and found that despite holding nonpublic meetings with both ACT and NAB, the FCC "examined all the relevant factors raised during the comment stage, and comprehensively and rationally justified its decision."97 The court held that ACT's inability to comment on NAB's regulatory proposals did not vitiate the FCC's decision not to issue regulations. The FCC, the court held, had "substantially complied" with the APA's informal rulemaking procedures by providing "limited, yet meaningful, public participation."98 That was all that was needed where the agency proceeding was "of a legislative nature."99 The court explained that "the more limited procedural safeguards in informal rulemaking are justified by its more wide-ranging functional emphasis on questions of law, policy and legislatively-conferred discretion rather than on the contested facts of an individual case."100
Using particularly pointed terms, the ACT court declined to adopt the rule fashioned in HBO prohibiting all ex parte communications or requiring their publication if received. The court held the ruling in HBO "constitutes a clear departure from established law when applied to informal rulemaking."101 "The novelty of this requirement," the ACT court stated, "should have been apparent to all."102 Comparing the APA's explicit prohibitions on ex parte communications for formal adjudications and rulemakings with the absence of any prohibition for informal rulemaking, the court reasoned that if Congress wanted to preclude ex parte communications in informal rulemaking, it would have done so explicitly.103 The court explained the rule in HBO was also practically unworkable because it would be impossible and inappropriate to ensure that a court had access to the "whole record" in the broadest sense.104 The court described the problem as one of "degree" and cautioned that where Congress has drawn a distinction between informal rulemaking and formal adjudication, the court should respect that distinction by drawing the line "at the point where the rulemaking proceedings involve 'competing claims to a valuable privilege.'"105 HBO, the court held, should be limited to its facts: informal rulemakings that involve resolving "competing claims to a valuable privilege."106 In other words, HBO's applicability should be limited to informal rulemakings that resemble adjudications.
Sierra Club v. Costle was and still is the most extensive treatment of the ex parte communications issue by the federal courts. In that case, the D.C. Circuit concluded that except where an ex parte communication was "vital" to the agency's decision, the mere presence of ex parte communications is not enough to invalidate an agency rulemaking.107
Sierra Club concerned the U.S. Environmental Protection Agency's (EPA's) regulation under the Clean Air Act of sulfur dioxide and particulate matter emitted by coal-fired power plants.108 EPA proposed and ultimately adopted an emission standard that was identical to its previous standard.109 Between issuing the proposed rule and the final rule, EPA engaged in an extensive investigation of whether adopting more stringent standards in the final rule would be advisable.110 During this investigation, EPA met with a number of outside interest groups, including the National Coal Association, environmental groups, and government officials, including West Virginia Senator Robert Byrd.111 EPA also accepted a significant number of comments submitted after the official comment period had closed.112 Despite a leak indicating that EPA was considering adopting a more stringent standard, EPA ultimately decided to adopt the same standard it selected in its proposed rule.113
A number of environmental groups brought suit.114 One of the challengers, the Environmental Defense Fund (EDF), alleged that EPA improperly backed away from a more stringent emissions standard because of an "'ex parte blitz' by coal industry advocates" after the comment period had closed.115 After the close of the comment period, EPA received nearly 300 written comments from various interests.116 EPA accepted all of these comments and entered them on its administrative docket. EPA also engaged in nine different meetings with various private entities and government officials, of which EPA included summaries of seven of the meetings in its docket.117 EDF argued that the ex parte communications taken as a whole "had such a serious impact on the . . . rulemaking, that they violated EDF's rights to due process."118
The court rejected EDF's arguments, finding that ex parte communications were legally permissible.119 The court held that the communications EDF objected to were not of "central importance" or "vital" to EPA's ultimate decision and as such there was no bar to accepting and considering the communications even if some were not made public.120 As with ACT, the court recognized that the APA explicitly prohibits ex parte communications in formal adjudication but not in informal rulemaking.121 The court also relied on a then-recent Supreme Court case, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council (NRDC).122
|
Vermont Yankee Nuclear Power Corp. v. NRDC Vermont Yankee grew out of a dispute over the permitting and construction of a nuclear power station in Vermont. As part of the permitting process, the Nuclear Regulatory Commission (NRC)—the federal agency that regulates civil nuclear power generation—promulgated a rule that regulated spent nuclear fuel. The NRDC challenged the rule in the D.C. Circuit. Echoing the arguments made by the petitioners in HBO, NRDC claimed that the procedures used by the NRC to promulgate the rule "denied [it] a meaningful opportunity to participate in the proceedings as guaranteed by due process."123 The D.C. Circuit agreed and declared that although the NRC followed the procedures in § 553 of the APA, the procedures were inadequate to provide a meaningful opportunity to participate and to produce a record the D.C. Circuit thought necessary for its review of the rulemaking.124 The Supreme Court reversed, declaring that courts may not impose additional procedures on agency rulemaking over and above what was prescribed by Congress in statute or what the agency has chosen to impose on itself by regulation.125 It is not for the courts, the Court held, to determine what procedures would produce the "best" or "correct" result in any given scenario.126 This kind of "vague" mandate, the Court found, would lead agencies to adopt the most rigorous procedural safeguards only found in formal adjudications totally obviating the benefits of informal rulemaking.127 |
Imposing requirements like those in HBO, the court warned, would run contrary to Vermont Yankee and to Congress's intent in enacting the informal rulemaking provisions of the APA that do not include a prohibition on ex parte communications.128
The court then engaged in a lengthy discussion of the value of ex parte communications in quasi-legislative settings like informal rulemaking:
Under our system of government, the very legitimacy of general policymaking performed by unelected administrators depends in no small part upon the openness, accessibility, and amenability of these officials to the needs and ideas of the public from whom their ultimate authority derives, and upon whom their commands must fall. . . . Furthermore, the importance to effective regulation of continuing contact with a regulated industry, other affected groups, and the public cannot be underestimated. Informal contacts may enable the agency to win needed support for its program, reduce future enforcement requirements by helping those regulated to anticipate and shape their plans for the future, and spur the provision of information which the agency needs.129
The court recognized that allowing informal communications with agency officials to proliferate could pose a danger that those external communications might unduly influence the agency, but noted that agencies are required to justify their actions based solely on the public record they create.130
Few if any courts have taken the HBO court's decision at its word that it applies to all informal rulemakings. Instead, a number of subsequent decisions have attempted to narrow HBO's scope to the small number of informal rulemakings in which constitutional due process concerns may be present, such as where an agency is awarding a valuable privilege to one of a defined group of interested parties—that is, where a rulemaking resembles an adjudication.131 Courts have inferred this limitation in HBO by referencing a much older case, Sangamon Valley Television Corp. v. United States.132
Like a number of other ex parte cases, Sangamon Valley concerned a decision by the FCC. In Sangamon Valley, the FCC's decision to assign various television channels to particular markets (e.g., assigning Channel 2 to St. Louis instead of Springfield) was challenged for being the product of improper ex parte communications. After the public comment period had closed but before the FCC made its decision, the owner of a St. Louis broadcaster who believed his company would likely be allocated Channel 2 had several meetings with each FCC commissioner, explaining to them that if the FCC allocated Channel 2 to St. Louis, it would reach far more viewers in Illinois than if it were allocated to Springfield.133 The FCC ultimately allocated the channel to St. Louis. Based on the content and extent of the communications, the D.C. Circuit remanded the decision to the FCC and ordered it to reopen its rulemaking record.134 The D.C. Circuit held that because the information provided to the commissioners was possibly of critical importance and never publicly revealed, parties who opposed assigning the channel to St. Louis should have had a chance to question it.135 It did not matter that the channel assignment was achieved through a rulemaking and not an adjudication, the court ruled: "[W]hatever the proceeding may be called it involved . . . resolution of conflicting private claims to a valuable privilege, and . . . basic fairness requires such a proceeding to be carried on in the open."136
In practical terms, the due process limitation on ex parte communications plays little role in informal rulemaking. Although the APA permits it, agencies rarely resolve disputes between two individuals through informal rulemaking.137
Ex parte communications that arise within the executive branch raise similar but somewhat different concerns than those that originate outside of government. Unlike ex parte communications that originate from outside of government, which can raise concerns that an agency's judgment has been corrupted by the private parochial interests of the regulated community, communications from within the executive branch sometimes raise concerns of improper political influence from the President or his political appointees. As with external ex parte communications, the line between entirely proper political control of agency policy and improper political influence has been difficult for courts and agencies to clearly define. The various approaches to this issue are grounded in differing views of the place of politics within the agency decisionmaking process. Some courts and commentators, for example, see political control of agency policy as integral to the democratic legitimacy of the regulations issued by executive branch agencies.138 This view is closely associated with the "unitary executive theory" of the executive branch, which broadly asserts that the President as a nationally elected figure has special claim to directing and managing the actions of agencies within the executive branch.139 That view is sometimes countered by others who argue that rulemaking should be insulated from political pressure and guided primarily by scientific or technical inputs.140
Sierra Club not only dealt with external ex parte communications, it also addressed communications internal to the executive branch between the President, the President's advisors, and EPA.141 As with external communications, the court held that a blanket prohibition on internal executive branch communications would be unwarranted.142 Whether those communications needed to be docketed in the rulemaking record, however, was an open question.143 Relying on separation of powers concerns, the court held that oral communications between the President and another agency do not need to be docketed unless the communications concern a quasi-judicial proceeding or a statute expressly requires it.144 The court explained that Article II of the Constitution vests the President with the authority to control and supervise the executive branch through the power to appoint and remove officials, demand written opinions from executive officers, and invoke executive privilege to shield communications.145 This view of the presidency reflects the court's belief that the Founders' choice of a single presidency also necessarily meant they preferred a strong presidency.146 After all, the court noted, the Constitutional Convention debated and rejected a plural executive and a President attended by a counsel of state. Instead, they chose a single executive and thereby "gain[ed] the advantages of accountability fixed on a single source."147
The court observed that from the structure of Article II flows the President's power to control and supervise the executive branch.148 "[T]he desirability of such control is demonstrable from the practical realities of administrative rulemaking."149 Regulations like those at issue in Sierra Club, the court explained, often require the careful balancing "of cost, environmental, and energy considerations" and often implicate "national economic policy."150 Without the President's ability to supervise and control the executive branch, the court held, "[o]ur form of government simply could not function effectively or rationally."151 The regulatory process, the Sierra Club court declared, is not "a rarified technocratic process, unaffected by political considerations or the presence of Presidential power."152
The court, accordingly, would not infer a requirement that oral communications between the White House and EPA needed to be docketed.153 "Where the President himself is directly involved in oral communications with Executive Branch officials, Article II considerations combined with the strictures of Vermont Yankee require that courts tread with extraordinary caution in mandating disclosure beyond that already required by statute."154 The court did, however, make two exceptions to protect due process concerns. First, where the communications concern the outcome of an agency adjudication or quasi-adjudicatory proceeding, they must be docketed.155 The President, the court held, has "no inherent executive power to control the rights of individuals" at stake in agency adjudicatory proceedings.156 Second, communications may need to be docketed where a statute explicitly requires information or data that formed the basis for the rule to be made public.157
The Sierra Club decision has come to stand for sanctioning some amount of political control of regulatory policy by the President through nonpublic means as a feature of the structure of the executive branch. Moreover, the Supreme Court has recently referred to Sierra Club for its discussion of presidential involvement in informal rulemaking.158 Sierra Club presents intra-executive branch communications conveying the political preferences of the President as a necessary part of constitutional government. Sierra Club also recognized Congress's authority to require by statute that these communications be made public.159 Sierra Club, however, did not address at what point intra-executive branch communications influence on a regulation can violate the APA. The Court took up that issue in Department of Commerce v. New York.
New York concerned a dispute over whether to include a citizenship question on the 2020 Census.160 The Enumeration Clause of the Constitution requires the federal government to conduct a decennial census.161 Congress delegated the authority to conduct the census to the Secretary of Commerce through the Census Act.162 From 1820 to 1950, the Census Bureau included a question about citizenship in its decennial census.163 The Census Bureau, however, had resisted adding the question back in because it believed that the question might lower response rates.164 In March 2018, the Census Bureau's stance changed when then-Secretary of Commerce Wilbur Ross announced that the 2020 census would include a question about citizenship.165 The agency explained its decision by claiming the information was needed by the Department of Justice to enforce the Voting Rights Act (VRA).166
In a highly fractured decision, four Justices joined Chief Justice Roberts in holding that the agency's decision to include a citizenship question did not violate the Enumeration Clause or the Census Act, and was not arbitrary and capricious.167 The Court held that the Census Act delegated the choice of whether to include the citizenship question to the Secretary of Commerce.168 Including the question in the light of the uncertainty about response rates, the Court held, "was reasonable and reasonably explained. . . . It is not for us to ask whether [the Secretary of Commerce's] decision was 'the best one possible' or even whether it was 'better than the alternatives.'"169
An entirely different set of four Justices joined Chief Justice Roberts in holding that the agency's public justification was a "pretext" and therefore must be set aside.170 The Court held that the agency's action violated the APA because "the VRA enforcement rationale—the sole stated reason—seems to have been contrived."171 A contrived or "pretextual" justification, the Court stressed, "defeat[s]" judicial review and turns it into an "empty ritual"—it denies courts the ability to scrutinize the "genuine justifications for important decisions."172
At the same time, however, the Court cautioned that the fact that an agency may have other unstated reasons is not cause for a court to "reject an agency's stated reasons."173 Decisions regarding regulatory policy, the Court explained, are by their nature "informed by unstated considerations of politics, the legislative process, public relations, interest group relations, foreign relations, and national security concerns (among others)."174 The Court thus noted that it is not improper for an agency head to have policy preferences and "work with staff attorneys to substantiate the legal basis" for their preferred policies.175 While the Court recognized "a narrow exception to the general rule against inquiring into the mental processes of administrative decisionmakers" where there is a "strong showing of bad faith or improper behavior," the Court emphasized that judicial review "is ordinarily limited to evaluating the agency's contemporaneous explanation in light of the existing administrative record."176
Department of Commerce is not explicitly a case about ex parte communications. It is a case about hidden (potentially illegitimate political) justifications. Ex parte communications, by their nature, have the potential to create the same divergence between public justifications and private reasons. In this way, the Department of Commerce Court appears to have been motivated by similar concerns as the D.C. Circuit in HBO—that there was a "sham" administrative record for the public and a secret one with actual reasons for those in the know.177
Although not specifically addressed in the opinion, Department of Commerce may be used by future courts to limit the ex parte involvement of private parties, political appointees, or the President in regulatory actions where their influence on policy choices would constitute an unstated but true motivation for an agency's regulatory action. Reading the Court's opinion broadly as a per se ban on pretextual justifications could potentially reach a large swath of regulatory action. Private parties, agency political appointees, and the President often communicate their policy desires privately to agencies, and in the case of communications from agency heads or the President, an agency may be required to follow their direction.178
Nonetheless, this broad reading may be practically difficult for courts to implement.179 The Court did not announce a new test for identifying pretextual justifications, nor did it explain when a court should even look for these types of justifications.180 Moreover, the Court's ultimate determination to set aside the agency's decision stands in some tension with both its own discussion of the limited nature of judicial review of agency rationales and cases like Sierra Club, which understood private communications between agencies and political appointees or the President as an essential part of constitutional government.181
Regulation of ex parte communications in informal rulemaking has been largely left to internal agency policy with intervention by the courts on occasion. Although historically Congress has declined to regulate these kinds of communications, it is within its Article I power to do so, at least for external ex parte communications. Congressional regulation of ex parte communications could take various forms from an outright ban to regulating how information received through such communications is made public.
The Administrative Conference of the United States (ACUS)—a small executive branch advisory body—has made several recommendations regarding the treatment of external ex parte communications.182 These recommendations are primarily directed at agency policies, but Congress could codify these recommendations were it to so choose. ACUS recommended against banning ex parte communications outright except in rare circumstances where concerns over them might be heightened (e.g., for rulemakings that have adjudicatory features).183 Rather than an outright ban, ACUS recommended that agencies adopt written ex parte policies that require the agency to post in an online docket, for instance on Regulations.gov, any written ex parte communication received by the agency during its informal rulemaking process.184 ACUS also recommended that agencies make public summaries of any oral ex parte communications they receive.185 ACUS also recommended that agencies reveal publicly with whom the agency has communicated before it issues its proposed rulemaking and after it issues its final rule so that the public would be aware what perspectives might have influenced the agency in the initial formulation of its proposal and the formulation or implementation of its final rule.186 As noted above, some scholars have observed that the timing of these communications, which typically fall outside the scope of judicial review, may be as or more important than communications received during the rulemaking process.187
Other possible reforms Congress could consider might include limiting how an agency uses any information received through an external ex parte communication—for instance, by barring the agency from relying on it in formulating its rules or requiring an agency to extend its comment period if it receives new or important information in an ex parte communication that occurs outside the comment period.
Congress's authority to regulate internal ex parte communications may be more limited. Congressional regulation of internal executive branch communications may implicate certain theories of presidential power rooted in Article II of the Constitution. In several recent cases regarding the President's authority to remove (i.e., fire) subordinate officials within the executive branch, the Supreme Court has held that Article II requires that the President retain the authority to direct and supervise officials who issue regulations (among other functions).188 This constitutional imperative might serve to limit Congress's ability to place an outright ban on ex parte communications between the President and agency regulators like the communications at issue in Sierra Club. Even a more modest form of regulation—for example, requiring public disclosure of ex parte communications between the President and agency regulators—could raise separation of powers concerns.189 Nonetheless, these constitutional concerns do not apply to executive branch officials other than the President.190 Congress could potentially regulate communications that occur between agencies in the interagency review process superintended by the Office of Management and Budget.191 Some of these communications are already required to be made public by executive order, and Congress could choose to codify and potentially expand the disclosure of internal ex parte communications.192 As with external ex parte communications, Congress could likely ban those communications from other agency officials or regulate how an agency uses them in the rulemaking process.193
Environmental Protection Agency
[E]ach EPA employee should ensure that all written comments regarding a proposed rule received from members of the public, including regulated entities and interested parties, are entered into the rulemaking docket.
. . .
[I]t is essential to ensure that the public receives timely notice, as far as practicable, of information or views that have influenced EPA's decisions. This means that EPA employees must summarize in writing and place in the rulemaking docket any oral communication during a meeting or telephone discussion with a member of the public or an interested group that contains significant new factual information regarding a proposed rule.194
Federal Communications Commission
47 C.F.R. § 1.1206 Permit-but-disclose proceedings
(a) . . . ex parte presentations . . . to or from Commission decision-making personnel are permissible in the following proceedings, which are referred to as permit-but-disclose proceedings, provided that ex parte presentations to Commission decision-making personnel are disclosed pursuant to paragraph (b) of this section:
(1) An informal rulemaking proceeding conducted under section 553 of the Administrative Procedure Act other than a proceeding for the allotment of a broadcast channel, upon release of a Notice of Proposed Rulemaking
. . .
(b) The following disclosure requirements apply to ex parte presentations in permit but disclose proceedings:
(1) Oral presentations. A person who makes an oral ex parte presentation subject to this section shall submit to the Commission's Secretary a memorandum that lists all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and summarizes all data presented and arguments made during the oral ex parte presentation. Memoranda must contain a summary of the substance of the ex parte presentation and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. If the oral ex parte presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum.
(2) Written and oral presentations. A written ex parte presentation and a memorandum summarizing an oral ex parte presentation (and cover letter, if any) shall clearly identify the proceeding to which it relates, including the docket number, if any, and must be labeled as an ex parte presentation. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and, accordingly, must be filed consistent with the provisions of this section. Consistent with the requirements of § 1.49 paragraphs (a) and (f), additional copies of all written ex parte presentations and notices of oral ex parte presentations, and any replies thereto, shall be mailed, e-mailed or transmitted by facsimile to the Commissioners or Commission employees who attended or otherwise participated in the presentation.
(i) In proceedings . . . for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, shall, when feasible, be filed through the electronic comment filing system available for that proceeding, and shall be filed in a native format (e.g., .doc, .xml, .ppt, searchable .pdf).
Department of Transportation
49 C.F.R. § 5.19 Public contacts in informal rulemaking
(a) Agency contacts with the public during informal rulemakings.
(1) DOT personnel may have meetings or other contacts with interested members of the public concerning an informal rulemaking under 5 U.S.C. 553 or similar procedures at any stage of the rulemaking process, provided the substance of material information submitted by the public that DOT relies on in proposing or finalizing the rule is adequately disclosed and described in a memorandum in the public rulemaking docket such that all interested parties have notice of the information and an opportunity to comment on its accuracy and relevance. The responsible OA or OST component may either prepare the memorandum or ask the party requesting the meeting or initiating the contact to submit the memorandum memorializing the communication.
(2) DOT personnel should avoid giving persons outside the executive branch information regarding the rulemaking that is not available generally to the public.
. . .
(4) If the issuing OA or OST component meets with interested persons on the rulemaking after the close of the comment period, it should be open to giving other interested persons a similar opportunity to meet.
(5) If DOT learns of significant new information, such as new studies or data, after the close of the comment period that the issuing OA or OST component wishes to rely upon in finalizing the rule, the OA or OST component should reopen the comment period to give the public an opportunity to comment on the new information. If the new information is likely to result in a change to the rule that is not within the scope of the NPRM, the OA or OST component should consider issuing a Supplemental NPRM to ensure that the final rule represents a logical outgrowth of DOT's proposal.
| 1. |
See APA, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. §§ 551–559, 701–706); S. Rep. No. 79-752, at 187–91 (1945); George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges From New Deal Politics, 90 N.W. U. L. Rev. 1557, 1558–61 (1996); Daniel R. Ernst, Tocqueville's Nightmare: The Administrative State Emerges in America 1900-1940 (2014). |
| 2. |
See, e.g., Wong Yang Sung v. McGrath, 339 U.S. 33, 37–38 (1950), superseded by statute, Supplemental Appropriation Act, 1951, ch. 1052, 64 Stat. 1044, 1048 (1950), as stated in Ardestani v. Immigr. & Naturalization Servs., 502 U.S. 129 (1991); Shepherd, supra note 1. |
| 3. |
Shepherd, supra note 1; Morgan II, 304 U.S. at 19–20, 22, 25–26 (likening private communications between the Secretary of Agriculture and the agency's investigatory and prosecutorial staff in a rate-setting adjudication to ex parte communications between a prosecutor and a judge). |
| 4. |
See 5 U.S.C. § 551(14); Sierra Club v. Costle, 657 F.2d 298, 366–67 (1981) (discussing ex parte communications within the executive branch). |
| 5. |
See, e.g., Home Box Off., Inc. (HBO) v. Fed. Commc'ns Comm'n. (FCC), 567 F.2d 9, 51–58 (D.C. Cir. 1977) (per curiam) (holding that agency personnel must refuse any ex parte communications after the rulemaking process has started); Cornelius J. Peck, Regulation and Control of Ex Part Communications with Administrative Agencies, 76 Harv. L. Rev. 233 (1961) (discussing approaches to regulate internal and external ex parte communications); Nathaniel L. Nathanson, Report to the Select Committee on Ex Parte Communications in Informal Rulemaking Proceedings, 30 Admin L. Rev. 377 (1978) (same); Paul Verkuil, Jawboning Administrative Agencies: Ex Parte Contacts by the White House, 80 Colum. L. Rev. 943 (1980); Nina Mendelson, Disclosing "Political" Oversight of Agency Decisionmaking, 108 Mich. L. Rev. 1127 (2010) (analyzing measures to make internal communications between the President and agencies more transparent). |
| 6. |
See APA, Pub. L. No. 79-404, 60 Stat. 237 (1946). |
| 7. |
Id. § 5 (codified at 5 U.S.C. § 554(d)). |
| 8. |
H. Rep. No. 94-880, at 19 (1976); Government in the Sunshine Act, Pub. L. No. 94-409, § 4, 90 Stat. 1241, 1246 (1976) (codified at 5 U.S.C. § 557). |
| 9. |
§ 4, 90 Stat. at 1246 (codified at 5 U.S.C. § 557). The prohibition that was added to § 557 is broader than the partial one included in the original APA in 1946. Section 554(d) only applies to the "presiding officer" and specifically excludes "members of the body comprising the agency," whereas § 557's prohibition applies to any employee "who is or may reasonably be expected to be involved in the decisional process." Moreover, § 554 only applies to formal adjudications, while § 557 applies to formal adjudications and formal rulemakings. |
| 10. |
See 5 U.S.C. § 557 ("This section applies, according to the provisions thereof, when a hearing is required to be conducted in accordance with section 556 of this title."); id. § 556 ("This section applies, according to the provisions thereof, to hearings required by section 553 or 554 of this title to be conducted in accordance with this section."). |
| 11. |
See id. § 553 (providing procedures for informal rulemaking). Informal rulemaking is also referred to as notice-and-comment rulemaking and is by far the most common method through which agencies issue rules. See Gordon v. N.Y. Stock Exch., Inc. 422 U.S. 659, 681 (1975). |
| 12. |
Id.; CRS In Focus IF10003, An Overview of Federal Regulations and the Rulemaking Process, by Maeve P. Carey (2026) (identifying several other steps in the rulemaking process imposed by executive orders or other statutes). |
| 13. |
See 5 U.S.C. § 553(a), (b)(A), (B), (d). |
| 14. |
Id. § 553(b). |
| 15. |
Id. § 553(c). |
| 16. |
Id. § 553(c), (d). |
| 17. |
See, e.g., Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915); Ohio Bell Tel. Co. v. Pub. Util. Comm'n, 301 U.S. 292, 303–04 (1937) (discussing the importance of due process to quasi-judicial proceedings before an agency); United States v. Fla. E. Coast Ry., 410 U.S. 224, 244–45 (1973) (discussing the distinction between due process concerns in quasi-judicial and quasi-legislative actions). |
| 18. |
Fla. E. Coast Ry., 410 U.S. at 245 (finding prior decisions "represent a recognized distinction . . . between proceedings for the purpose of promulgating policy-type rules or standards . . . and proceedings designed to adjudicate disputed facts in particular cases"); Nathanson, supra note 5, at 383 (discussing the slightly different approaches taken by the Supreme Court in evaluating due process concerns in informal rulemaking). The Supreme Court recognized the limited due process concerns that attend quasi-legislative actions in the early twentieth century in Bi-Metallic Investment Co. v. State Board of Equalization. 239 U.S. at 445 ("Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole."). |
| 19. |
Kenneth Culp Davis, Administrative Law Treatise § 6:18 (2d ed. 1978) ("Communications of all sorts are the life of a notice and comment proceeding. The more the better."); Kristen E. Hickman & Richard J. Piecer, Jr., Administrative Law Treatise § 5.6 (6th ed. 2019) ("If Congress considers a bill in open committee hearings and in floor debates, would the court call the public discussions a sham if constituents talk to some members of Congress before the votes are taken? Or is widespread communication between constituents and policymakers the essence of democracy? These questions answer themselves."). |
| 20. |
Sierra Club v. Costle, 657 F.2d 298, 401 (D.C. Cir. 1981). These motivations for a permissive stance toward ex parte communications mirror the motivations for the notice and comment procedures in the APA. See H.R. Rep. No. 79-1980, at 23–24 (1946); S. Rep. No. 79-752, at 13–14 (1946) |
| 21. |
See, e.g., Message of the President on Ethical Conduct in the Government, H.R. Doc. No. 87-145, at 6–7 (1961) ("This problem is one of the most complex in the entire field of Government regulation. It involves the elimination of ex parte contacts when those contacts are unjust to other parties, while preserving the capacity of an agency to avail itself of information necessary to decision"); HBO v. FCC, 567 F.2d 9, 51–58 (D.C. Cir. 1977) (per curiam); Christopher S. Havasy, Relational Fairness in the Administrative State, 109 Va. L. Rev. 749, 807–08 (2023) ("Empirical work shows large and persistent inequalities in ex parte communication engagement between different affected parties. These inequalities are worrying because they point to relationships between agencies and affected parties that are closed, unequal in access, and lacking equal respect."); Richard E. Levy & Robert L. Glicksman, Agency-Specific Precedents, 89 Tex. L. Rev. 499, 535 (2011) ("[E]x parte communications may undermine the rulemaking process, be unfair to interested parties, and compromise the record for judicial review."). |
| 22. |
See Daniel E. Walters, Capturing the Regulatory Agenda: An Empirical Study of Agency Responsiveness to Rulemaking Petitions, 43 Harv. Env't L. Rev. 175, 183–87 (2019) (discussing prior scholarship on agency "capture"); Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. 15, 21–24 (2010); Nicholas Bagley, Agency Hygiene, 89 Tex. L. Rev. 1 (2010); Wendy E. Wagner, Administrative Law. Filter Failure, and Information Capture, 59 Duke L.J. 1321, 1329–42 (2010); Michael E. Levine & Jennifer L. Forrence, Regulatory Capture, Public Interest, and the Public Agenda: Toward a Synthesis, 6 J.L. Econ. & Org. 167, 178 (1990). |
| 23. |
See Sangamon Valley Television Corp. v. United States, 269 F.2d 221, 224 (D.C. Cir. 1959); HBO, 567 F.2d at 58; Dep't of Com. v. New York, 588 U.S. 752, 785 (2019). |
| 24. |
See Havasy, supra note 21. |
| 25. |
See, e.g., HBO, 567 F.2d at 58; Sierra Club, 657 F.2d at 391–92; Brennan v. Dickson, 45 F.4th 48, 66–68 (D.C. Cir. 2022); Memorandum from Michael S. Regan, Adm'r, Env't Prot. Agency (EPA), to Emps. of the EPA (Apr. 12, 2021) [hereinafter Fishbowl Memo], https://www.epa.gov/sites/default/files/2021-04/documents/regan-messageontransparencyandearningpublictrustinepaoperations-april122021.pdf [https://perma.cc/F59G-VJMJ] (requiring EPA employees to summarize and place in the record ex parte communications that "contain significant new factual information"); Memorandum from John E. Putnam, Deputy Gen. Couns., Dep't of Transp., to Secretarial Officers & Heads of Operating Admins. 11–12 (Apr. 19, 2022) [hereinafter DOT Memo], https://www.regulationwriters.com/downloads/DOT-Ex-Parte-Memo2022.pdf [https://perma.cc/HWJ7-M6JG] (requiring employees to enter in the rulemaking record a summary of any ex parte communication). |
| 26. |
Compare HBO, 567 F.2d at 58, with Sierra Club, 657 F.2d at 391–92. |
| 27. |
See, e.g., Brennan, 45 F.4th at 66–68. A minority of courts, however, have addressed ex parte communications in light of due process concerns. See HBO, 567 F.2d at 58. |
| 28. |
Secs. & Exch. Comm'n (SEC) v. Chenery Corp., 318 U.S. 80, 94 (1943). |
| 29. |
See, e.g., DOT Memo, supra note 25; 22 C.F.R. Part 201 (2026) (governing ex parte communications in Federal Election Commission rulemaking); 37 C.F.R. § 205.24 (2026) (governing ex parte communications in informal rulemaking in the Copyright Office); 44 C.F.R. § 1.6 (2026) (governing ex parte communications for Federal Emergency Management Agency rulemaking); 50 C.F.R. § 50.17 (2026) (governing ex parte communications in Department of Justice (DOJ) informal rulemaking). |
| 30. |
See infra "Examples of Agency Ex Parte Policies" (sampling several different agency ex parte policies). |
| 31. |
Compare 50 C.F.R. § 50.17 (DOJ rule generally allowing ex parte communications with disclosure), with 37 C.F.R. § 205.24 (providing detailed procedures for permissible ex parte communications and clarifying impermissible communications for the Copyright Office). |
| 32. |
See, e.g., HBO, 567 F.2d at 57 (analyzing ex parte communications from private industry groups); Action for Children's Television (ACT) v. FCC, 564 F.2d 458, 477 (D.C. Cir. 1977) (same); Sierra Club v. Costle, 657 F.2d 298, 386-87 (D.C. Cir. 1981) (evaluating ex parte communications received from both outside private industry groups and internally from the President and his staff); Nathanson, supra note 5, at 382; Paul R. Verkuil, Jawboning Administrative Agencies: Ex Parte Contacts by the White House, 80 Colm. L. Rev. 943, 944 (1980) (noting judicially created rules related to ex parte communications had up to that point been primarily directed at external sources). |
| 33. |
Hickman & Pierce, supra note 19, § 5.6; New Mexico v. EPA, 114 F.3d 290, 295 (D.C. Cir. 1997) (analyzing communications between the Office of Management and Budget and EPA). |
| 34. |
5 U.S.C. § 551(14). |
| 35. |
See id. §§ 551(14), 554(d), 557(d). Including both internal and external ex parte communications within the prohibitions was likely intentional. Prior to the APA's passage, the Supreme Court had expressed concerns that contacts between political appointees and agency decisionmakers within the same agency had created an inappropriate pro-agency bias that violated due process principles in some instances. See Morgan I, 298 U.S. 468, 480 (1936) (characterizing setting maximum rates by the Secretary of Agriculture "as a proceeding of a quasi-judicial character. The requirement of a 'full hearing' has obvious reference to the tradition of judicial proceedings." (emphasis added)); Morgan II, 304 U.S. 1 (1938) (finding that a rate order was invalid in part because the findings supporting the order were drafted by the agency's prosecutorial staff and adopted by the Secretary with little change and without the opportunity of the regulated parties to contest the government's findings). The APA's original partial prohibition on ex parte communications in § 554(d) likewise does not distinguish between external or internal communications. See 5 U.S.C. § 554(d). Concerns regarding communications between prosecutorial staff and decisionmakers within the agency, like those identified in the Morgan II decision, likely influenced the drafters of the APA. See Nathanson, supra note 5, at 385–90 (discussing the influence of the Morgan cases on debates regarding the formulation of the APA) Ernst, supra note 1, at 122. The influence of the Morgan decisions, however, only went so far—§ 554(d)'s prohibition does not apply to "the agency or a member or members of the body comprising the agency." 5 U.S.C. § 554(d). Further, the report that accompanied the bill that ultimately became the Government in the Sunshine Act stated the bill "would enact a general prohibition on ex parte communications between agency decisionmaking personnel . . . and outside persons having an interest in the outcome of a pending proceeding." H.R. Rep. No. 94-880, at 4 (1976). |
| 36. |
See 5 U.S.C. § 553. |
| 37. |
See, e.g., Policy on Ex parte Presentations in Rulemaking Proceedings, 82 Fed. Reg. 18687, 18687 (Apr. 21, 2017) (codified at 12 C.F.R. Part X) ("an 'ex parte presentation' means 'any written or oral communication' by 'any person outside the CFPB that imparts information or argument directed to the merits or outcome of a rulemaking proceeding.'"); 47 C.F.R. § 1.1206 (2024) (Federal Communication Commission's regulation permitting but requiring disclosure of ex parte communications in informal rulemaking). New Mexico, 114 F.3d at 295; Brennan v. Dickson, 45 F.4th 48, 65 (D.C. Cir. 2022). |
| 38. |
See Nathanson, supra note 5, at 403 (discussing pre-notice ex parte communications); William F. Pedersen, Jr. Formal Records and Informal Rulemaking, 85 Yale. L.J. 38, 55–57 (1975) (detailing EPA's contacts with outside groups in the formulation of a regulation); E. Donald Elliott, Re-Inventing Rulemaking, 41 Duke L.J. 1490, 1492–93 (1992) (same); Wagner, supra note 22, at 1366–68 (discussing various incentives for agencies to engage in pre-notice communications); Richard Murphy, Enhancing the Role of Public Interest Organizations in Rulemaking Via Pre-Notice Transparency, 47 Wake Forest L. Rev. 681, 693 (2012) (noting "the well-known fact of administrative life that most of the real policymaking in legislative rulemaking occurs well before an agency publishes an NPRM in the Federal Register"); Walters, supra note 22, at 187–90 (surveying data regarding pre-notice contacts between agencies and the relevant regulated community). |
| 39. |
See, e.g., HBO v. FCC, 567 F.2d 9, 57 (D.C. Cir. 1977) (per curiam) (holding that communications received before the publication of a notice of proposed rulemaking do not need to be made public); Nathanson, supra note 5, at 403 (discussing practical difficulties in enforcing any limits on pre-notice communications); Policy on Ex parte Presentations in Rulemaking Proceedings, 82 Fed. Reg. at 18687; 47 C.F.R. § 1.1206. |
| 40. |
See, e.g., HBO, 567 F.2d at 57. |
| 41. |
Nathanson, supra note 5, at 403 n.65 (describing the rulemaking process as cyclical because each rule is always subject to revision or amendment). |
| 42. |
Id. |
| 43. |
See Wendy E. Wagner, Rulemaking in the Shade: An Empirical Study of EPA's Air Toxic Emission Standards, 63 Admin. L. Rev. 99, 124–26 (2011) (finding that EPA engaged in extensive communications with outside groups during the rule development stage); Susan Webb Yackee, The Politics of Ex Parte Lobbying: Pre-Proposal Agenda Building and Blocking During Agency Rulemaking, 22 J. of Pub. Admin. Rsch. & Theory 373, 385 (2012) (finding that ex parte pre-notice communications occur); Murphy, supra note 38, at 687–88 (discussing incentives for agencies set policy prior to a notice of proposed rulemaking). |
| 44. |
Wagner, supra note 43, at 124–26; Yackee, supra note 43, at 385; Cary Coglianese & Daniel E. Walters, Agenda-Setting in the Regulatory State: Theory and Evidence, 68 Admin L. Rev. 93, 94 (2016) (finding the pre-notice stage the time when agencies make "some of the most critical decisions"). |
| 45. |
See Elliott, supra note 38, at 1494 (noting that by the time the comment period opens, an agency's rule has already "jelled"); Murphy, supra note 38, at 687–88 (arguing that review by the Office of Information and Regulatory Affairs, notice and comment procedures, and judicial review doctrines limit an agency's ability to change course after a notice of proposed rulemaking has been issued); William F. West, Inside the Black Box: The Development of Proposed Rules and the Limits of Procedural Controls, 41 Admin. & Soc'y 576, 580–81 (2009) (identifying the requirement of adequate notice and sunk organizational costs as disincentives for an agency to change course once it has issued a notice of proposed rulemaking). |
| 46. |
Sierra Club v. Costle, 657 F.2d 298, 391 (D.C. Cir. 1981) ("At the outset, we decline to begin our task of reviewing EPA's procedures by labeling all post-comment communications with the agency as 'ex parte.' Such an approach essentially begs the question whether these particular communications in an informal rulemaking proceeding were unlawful."); Nathanson, supra note 5, at 396 ("In the ordinary rulemaking proceedings the parties are not identified in advance. Neither are conflicting interests established in advance among those subject to the proposed regulation, or between them and the government agency involved. In such a situation the very concept of ex parte communications is strikingly out of place; there are no parties to begin with, and it is not known what parties will develop and what their conflicting interests will be."); Verkuil, supra note 5, at 975–76 ("The concept of 'ex parte' implies a different decisional structure from that involving mere 'interested persons.' One can only have a contact without 'parties' present in a proceeding where parties are involved, namely adjudication or formal rulemaking."). |
| 47. |
Verkuil, supra note 5, at 975–76. |
| 48. |
Id.; see also Sierra Club, 657 F.2d at 400 ("But where agency action involves informal rulemaking of a policymaking sort, the concept of ex parte contacts is of more questionable utility."). |
| 49. |
Nathanson, supra note 5, at 396. |
| 50. |
Davis, supra note 19; Walter Gellhorn et al., Administrative Law 871 (7th ed. 1979). |
| 51. |
See Marcello v. Bonds, 349 U.S. 302, 306–07 (1955) (discussing Congress's decision to exempt certain immigration adjudications from the APA). |
| 52. |
See 5 U.S.C. § 704. For more information on judicial review pursuant to the APA, see CRS Legal Sidebar LSB10558, Judicial Review Under the Administrative Procedure Act (APA), by Jonathan M. Gaffney (2024). |
| 53. |
Bennett v. Spear, 520 U.S. 154, 178 (1997) (quoting Port of Bos. Marine Terminal Ass'n v. Rederiaktiebolaget Transatl., 400 U.S. 62, 71 (1970)). |
| 54. |
5 U.S.C. § 706. |
| 55. |
See id. § 706(2)(A). |
| 56. |
FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021). |
| 57. |
Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). |
| 58. |
Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council (NRDC), 435 U.S. 519, 549 (1978) (first citing Camp v. Pitts, 411 U.S. 138, 143 (1973); and then citing SEC v. Chenery Corp., 318 U.S. 80 (1943)). The requirement to compile a rulemaking record in informal rulemaking is judicially created. See Christopher J. Walker, The Lost World of the Administrative Procedure Act: A Literature Review, 28 Geo. Mason L. Rev. 733, 743 (2021) ("[I]informal rulemaking—in contrast to formal rulemaking—is not 'on the record,' and thus section 553 arguably does not require the agency to maintain a publicly available administrative record for the proceeding."); Richard J. Pierce, Jr., Waiting for Vermont Yankee III, IV, and V? A Response to Beermann and Lawson, 75 Geo. Wash. L. Rev. 902, 908 (2007) (arguing that the D.C. Circuit's arbitrary and capricious review jurisprudence greatly contributed to the voluminous records agency's now compile); Richard B. Stewart, Vermont Yankee and the Evolution of Administrative Procedure, 91 Harv. L. Rev. 1805, 1816–17 (1978) (noting that the record requirement "plainly goes beyond the APA"). The APA's informal rulemaking provisions do not explicitly require an agency to compile an administrative record to support its action. 5 U.S.C. § 553. Section 553(c) states in relevant part that "the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose." Id. The Attorney General's Manual on the APA, compiled shortly after the APA was enacted, states that § 553 "does not require the formulation of rules upon the exclusive basis of any 'record' made in informal rulemaking proceedings." Attorney General's Manual on the Administrative Procedure Act 31 (1973). Nonetheless, some have argued that the record requirement finds some support in § 706's instruction that the reviewing "court shall review the whole record or those parts of it cited by a party." 5 U.S.C § 706; Walker, supra, at 743 n.49. But see Pedersen, supra note 38, at 62 ("Plainly this language was drawn up with adjudicatory proceedings in mind. It does not address how the record in an informal rulemaking case should be assembled."). |
| 59. |
See, e.g., Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2005); Travis O. Brandon, Reforming the Extra-Record Evidence Rule in Arbitrary and Capricious Review of Informal Agency Actions: A New Procedural Approach, 21 Lewis & Clark L. Rev. 981, 982 (2017) (discussing "record review"). |
| 60. |
Dep't of Com. v. New York, 588 U.S. 752, 780 (2019) (quoting Burlington Truck Lines, 371 U.S. at 167–69) (citing SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)). |
| 61. |
Chenery Corp., 318 U.S. at 94. |
| 62. |
New York, 588 U.S. at 756. |
| 63. |
Vt. Yankee, 435 U.S. at 549 (citing Pitts, 411 U.S. at 142; Chenery Corp., 318 U.S. at 94). |
| 64. |
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), abrogated by Califano v. Sanders, 430 U.S. 99 (1977); Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); Epsilon Elecs., Inc. v. Dep't of Treasury, 857 F.3d 913, 918–19 (D.C. Cir. 2017) ("We have described de novo review in an APA case as 'extraordinary and rare,' so rare, in fact, that we have never done so." (quoting Zevallos v. Obama, 793 F.3d 106, 112 (D.C. Cir. 2015)). |
| 65. |
Epsilon Elecs., 857 F.3d at 918-19 (quoting Overton Park, 401 U.S. at 420). |
| 66. |
Vt. Yankee, 435 U.S. at 549; Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983). |
| 67. |
Pitts, 411 U.S. at 142; see also New York, 588 U.S. at 785 (remanding decision to include citizenship question on the Census to the Department of Commerce because the reasons stated in the record for including the question were "incongruent" with the facts in the record); Lorion, 470 U.S. at 744 ("If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation."). |
| 68. | |
| 69. |
Id. (quoting Sierra Club v. Costle, 657 F.2d 298, 408 (D.C. Cir. 1981)). |
| 70. |
New York, 588 U.S. at 780. |
| 71. |
Am. Mining Cong. v. Thomas, 772 F.2d 617, 626 (10th Cir. 1985) (citing six different exceptions to the record review rule); Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989) (citing eight exemptions); Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (citing five exceptions); Colo. Wild v. Vilsack, 713 F. Supp. 2d 1235, 1239–40 (D. Colo. 2010) (lamenting the confusion over which records constitute the record and which exceptions can be used to supplement or complete an allegedly incomplete record); Steven Stark & Sarah Wald, Setting No Records: The Failed Attempts to Limit the Record in Review of Administrative Action, 36 Admin. L. Rev. 333, 336 (1984); Gordon G. Young, Judicial Review of Informal Agency Action on the Fiftieth Anniversary of the APA: The Alleged Demise and Actual Status of Overton Park's Requirement of Judicial Review "On the Record," 10 Admin. L.J. Am. U. 179 (1996); Brandon, supra note 59, 991–95 (2017). |
| 72. |
401 U.S. 402, 420 (1971), abrogated by Califano v. Sanders, 430 U.S. 99 (1977). Overton Park was a case challenging an agency adjudication—not rulemaking. As noted above, adjudications implicate due process concerns in a way that rulemaking does not. Nonetheless, Overton Park has been applied to cases challenging informal rulemaking. See, e.g., Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 (1983); New York, 588 U.S. at 765. |
| 73. |
Compare 5 U.S.C. § 556(e) ("The transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision."), with id. § 553(c) ("After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose."). |
| 74. |
Id. § 553(c). |
| 75. |
See id. (requiring the agency to provide "interested persons an opportunity" to submit "written data, views, or arguments" to the agency and directing the agency to publish a short statement of a rule's basis and purpose after "consideration of the relevant matter presented"); Davis, supra note 19 (calling information of all kinds from all sources the "life" of informal rulemaking). |
| 76. |
See, e.g., Sierra Club v. Costle, 657 F.2d 298, 392 (D.C. Cir. 1981) (describing the petitioners' claims that certain ex parte communications should have been included in the record); HBO v. FCC, 567 F.2d 9, 54–55 (D.C. Cir. 1977) (per curiam) (criticizing the agency for not including ex parte communications in the record); ACT v. FCC, 564 F.2d 458, 477 (D.C. Cir. 1977) (holding that ex parte communications that they agency does not rely on need not be included in the record); New York v. Dep't of Com., 333 F. Supp. 3d 282, 285–86 (S.D.N.Y. 2018) (analyzing claims to supplement the record and ordering the Secretary of Commerce to sit for a deposition), vacated as moot, 351 F. Supp. 3d 502 (S.D.N.Y.), aff'd in part, rev'd in part and remanded sub nom., Dep't of Com. v. New York, 588 U.S. 752 (2019). |
| 77. |
See HBO v. FCC, 567 F.2d 9, 55 (D.C. Cir. 1977) (per curiam). |
| 78. |
See Sierra Club, 657 F.2d at 398–9. |
| 79. |
Underlying this tension are competing views about due process-like principles and separation of powers concerns. The minority of courts that have adopted a robust form of the reasoned explanation requirement tend to see the demands of the reasoned explanation requirement flowing from, among other things, concerns about the fairness to the public or the regulated community of an agency receiving and evaluating information not subject to public or judicial scrutiny. HBO, 567 F.2d at 55; Sangamon Valley Television Corp. v. United States, 269 F.2d 221 (D.C. Cir. 1959). On the other side, the majority of courts have adopted the weaker version of the reasoned explanation requirement based in part on preserving comity between two coequal branches of government by refraining from second-guessing an agency's public justification if that justification is sufficient to sustain the agency's action. See New York, 588 U.S. at 781. |
| 80. |
Cf. New York, 588 U.S. at 785 (remanding to the agency its decision to include a citizenship question on the Census because "[w]e are presented . . . with an explanation for agency action that is incongruent with what the record reveals about the agency's priorities and decisionmaking process"). |
| 81. |
See id. at 780. |
| 82. |
567 F.2d 9. |
| 83. |
Id. at 18–19. |
| 84. |
Id. at 52, 59. |
| 85. |
Id. at 52. |
| 86. |
Id. at 53. |
| 87. |
Id. at 54–56. |
| 88. |
Id. at 58. |
| 89. |
Id. at 56. |
| 90. |
Id. at 55. |
| 91. |
Id. |
| 92. |
Id. |
| 93. |
Id. at 54. |
| 94. |
Id. at 55. |
| 95. |
ACT v. FCC, 564 F.2d 458 (D.C. Cir. 1977). |
| 96. |
Id. at 468 (quoting Brief for Petitioner at 26–28, ACT, 564 F.2d 458 (D.C. Cir. 1977) (No. 74-2006)). |
| 97. |
Id. at 478. |
| 98. |
Id. at 471. |
| 99. |
Id. |
| 100. |
Id. |
| 101. |
Id. at 474. |
| 102. |
Id. at 475. |
| 103. |
Id. at 474 n.28. |
| 104. |
Id. at 477. |
| 105. |
Id. (quoting HBO v. FCC, 567 F.2d 9, 61 (D.C. Cir. 1977) (MacKinnon, J., concurring specially)). |
| 106. |
Id. |
| 107. |
Sierra Club v. Costle, 657 F.2d 298, 398–99 (D.C. Cir. 1981). |
| 108. |
Id. at 311–313. |
| 109. |
Id. at 384. |
| 110. |
Id. at 385. |
| 111. |
Id. at 387–89. |
| 112. |
Id. at 386. |
| 113. |
Id. at 385–87. |
| 114. |
Id. at 312. |
| 115. |
Id. at 386. |
| 116. |
Id. at 387. |
| 117. |
Id. at 387–89. EPA did not include a summary of one of its meetings with Senator Byrd and later claimed it was an oversight not to include an entry in its docket. EPA also did not include a summary of its meeting with the President and his advisers in its docket. Id. at 389. |
| 118. |
Id. at 391. |
| 119. |
Id. at 400. |
| 120. |
Id. at 398. |
| 121. |
Id. at 400. The rule promulgated by EPA in Sierra Club was in fact promulgated pursuant to agency-specific rulemaking procedures in the Clean Air Act, not the APA. 42 U.S.C. § 7607. Nonetheless, in every relevant respect, the Clean Air Act's rulemaking procedures are identical to the APA's, and judicial interpretations of the APA's rulemaking procedures inform interpretations of the Clean Air Act's rulemaking procedures. |
| 122. |
Sierra Club, 657 F.2d at 392; Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978). |
| 123. |
NRDC v. NRC, 547 F.2d 633, 643 (D.C. Cir. 1976), rev'd sub nom. Vt. Yankee, 435 U.S. 519 (1978), and cert. granted, judgment vacated sub nom., Balt. Gas & Elec. Co. v. NRDC, 435 U.S. 964 (1978). |
| 124. |
Id. |
| 125. |
Vt. Yankee, 435 U.S. at 523–25, 542–49. |
| 126. |
Id. at 549. |
| 127. |
Id. |
| 128. |
See Sierra Club, 657 F.2d at 392 ("The [Supreme] Court declared that so long as an agency abided by the minimum procedural requirements laid down by statute, this court was not free to impose additional procedural rights if the agency did not choose to grant them." (citing Vt. Yankee, 435 U.S. 519, 523–25 (1978))). The Court in Vermont Yankee explained further that an agency was free to provide additional process if it so chose and was within the authority of the agency to provide. 435 U.S. at 524. Thus, from the perspective of an agency, Vermont Yankee reaffirms that the procedures in the APA are a floor but not a ceiling. From the perspective of the courts, Vermont Yankee stands for the proposition that the procedures in the APA are both a floor and a ceiling. |
| 129. |
Sierra Club, 657 F.2d at 400–01 (footnote omitted). |
| 130. |
Id. at 401. In a subsequent case, Iowa State Commerce Commission v. Office of the Federal Inspector of the Alaska Natural Gas Transportation System, 730 F.2d 1566 (D.C. Cir. 1984), the D.C. Circuit further narrowed the application of HBO, holding that HBO did not apply to ex parte communications that occurred before an agency issued a proposed rulemaking. Id. at 1576. |
| 131. |
See ACT v. FCC, 564 F.2d 458, 471–75 (D.C. Cir. 1977); Richard J. Piecer, Jr., Waiting for Vermont Yankee III, IV, and V—a Response to Beerman and Lawson, 75 Geo. Wash. L. Rev. 902, 911–12 (2007) (noting that these circumstances are "extremely narrow"). |
| 132. |
Sangamon Valley Television Corp. v. United States, 269 F.2d 221 (D.C. Cir. 1959). |
| 133. |
Id. at 224. The ex parte communications were also accompanied by gifts of turkeys for each commissioner. Id. |
| 134. |
Id. at 225. |
| 135. |
Id. at 224. |
| 136. |
Id. |
| 137. |
See 5 U.S.C. § 551(4) (defining "rule" as "an agency statement of general or particular applicability and future effect" (emphasis added)). |
| 138. |
See, e.g., Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2335 (2001) (arguing that the President's national constituency predisposes him to "setting the direction of administrative policy" according to "the preferences of the general public, rather than merely parochial interests"); Kathryn A. Watts, Controlling Presidential Control, 114 Mich. L. Rev. 683, 726 (2016) (arguing that presidential control can promote "political accountability and regulatory coherence"); Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 Yale L.J. 541 (1994); Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, Burger, Powell, O'Connor, JJ., concurring in part and dissenting in part) ("A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations."). |
| 139. |
See Cass R. Sunstein & Adrian Vermuele, The Unitary Executive: Past, Present, Future, 2020 S. Ct. Rev. 83, 90 (2020) (describing unitary executive theory). |
| 140. |
See, e.g., Kathryn E. Kovacs, Rules About Rulemaking and the Rise of the Unitary Executive, 70 Admin. L. Rev. 515, 567 (2018) ("If agencies, like Congress, continue to lose their policymaking agility, the President increasingly will fill the gap and make policy himself, coming closer and closer to true authoritarianism."); Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum L. Rev. 1613, 1628 (1995) (arguing that science policymakers need to be "well-grounded in science" and be "be extremely forthright in distinguishing policy judgments from scientific facts"). |
| 141. |
Sierra Club v. Costle, 657 F.2d 298, 387–89 (D.C. Cir. 1981). |
| 142. |
Id. at 407. |
| 143. |
Id. |
| 144. |
Id. at 406–07. |
| 145. |
Id. at 405. |
| 146. |
Id. |
| 147. |
Id. For more information on the development of the office of the presidency at the Constitutional Convention, see CRS Report R48999, The President's Removal Power: The Constitutional Convention and the First Congress, by Benjamin M. Barczewski and Todd Garvey (2026). |
| 148. |
Sierra Club, 657 F.2d at 405. |
| 149. |
Id. at 406. |
| 150. |
Id. |
| 151. |
Id. |
| 152. |
Id. at 408. |
| 153. |
Id. at 407. |
| 154. |
Id. at 407. |
| 155. |
Id. at 406–07. |
| 156. |
Id. at 407. |
| 157. |
Id. The court did not address whether a statute requiring publication of communications with the President might infringe on the President's executive communications privilege. Id. |
| 158. |
See Dep't of Com. v. New York, 588 U.S. 752, 781 (2019) ("Agency policymaking is not a 'rarified technocratic process, unaffected by political considerations or the presence of Presidential power.'" (quoting Sierra Club, 657 F.2d at 408)). |
| 159. |
657 F.2d at 404–08. |
| 160. |
588 U.S. 752, 761 (2019). |
| 161. |
U.S. Const. art. I, § 2, cl. 3. |
| 162. |
13 U.S.C. § 141(a). |
| 163. |
New York, 588 U.S. at 760. |
| 164. |
Id. at 761. |
| 165. |
Id. |
| 166. |
Id. at 759–62. |
| 167. |
Id. at 778–80; id. at 789 (Thomas, Gorsuch, and Kavanaugh, JJ., concurring in part and dissenting in part); id. at 838 (Alito, J., concurring in part and dissenting in part). |
| 168. |
Id. at 771. |
| 169. |
Id. at 776–77 (majority opinion) (quoting Fed. Energy Reg. Comm'n v. Elec. Power Supply Ass'n, 577 U.S. 260, 292 (2016), as revised (Jan. 28, 2016)). |
| 170. |
Id. at 800 (Ginsburg, Kagan, Sotomayor, and Breyer, JJ., concurring in part and dissenting in part). |
| 171. |
Id. at 784 (majority opinion). |
| 172. |
Id. at 785 ("The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public."). |
| 173. |
Id. at 781. |
| 174. |
Id. |
| 175. |
Id. at 783. |
| 176. |
Id. at 780, 781 (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)). |
| 177. |
HBO v. FCC, 567 F.2d 9, 55 (D.C. Cir. 1977) (per curiam). |
| 178. |
See Sierra Club v. Costle, 657 F.2d 298, 406–07 (D.C. Cir. 1981). |
| 179. |
See, e.g., Louis Murray, Reconceptualizing Pretext's Role in Administrative Law, 57 Harv. J. on Leg. 481, 493–95 (2020) (identifying several impediments to applying the Court's holding in Department of Commerce in future cases). |
| 180. |
New York, 588 U.S. at 784 ("Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision." (emphasis added)). |
| 181. |
The Court's decision might also be limited by the facts of the case. The district court in the case ordered the Department of Commerce to produce an additional 12,000 pages of records to supplement the rulemaking record. New York, 588 U.S. at 765. It was only by reviewing those records—records that would not have been before the Court absent that request by the plaintiffs—that the Court was able to confirm that the Secretary of Commerce had attempted to convince other agencies to request citizenship data as a pretext for including the citizenship question. Id. at 765. |
| 182. |
Esa L. Sferra-Bonistalli, Admin. Conf. of the U.S., Ex Parte Communications in Informal Rulemaking 83–88 (2014). |
| 183. |
Id. at 85. |
| 184. |
Id. at 84. |
| 185. |
Id. |
| 186. |
Id. at 86. |
| 187. |
Wagner, supra note 43, at 124–26 (finding that EPA engaged in extensive communications with outside groups during the rule development stage); Yackee, supra note 43, at 385 (finding that ex parte pre-notice communications occur); Murphy, supra note 38, at 687–88 (discussing incentives for agencies set policy prior to a notice of proposed rulemaking). |
| 188. |
Trump v. Slaughter, 609 U.S. 422, 455 (2026); Collins v. Yellen, 594 U.S. 220 (2021); Seila Law, LLC v. CFPB, 591 U.S. 197 (2020). |
| 189. |
See Trump v. United States, 603 U.S. 593, 621–22 (2024) (categorizing discussions with cabinet officials as part of the core of executive functions that may be outside congressional regulation); CRS Report R47102, Executive Privilege and Presidential Communications: Judicial Principles, by Todd Garvey (2022). In 1980, during the Chairmanship of Antonin Scalia, ACUS recommended against requiring disclosure of presidential communications with agencies when those communications involved policy advice. Where the communications included "material factual information . . . pertaining to or affecting a proposed rule," however, ACUS recommended the agency place that information in the public docket and consider whether the information is of such importance that the agency should ensure that the public has an adequate opportunity to respond to the material. Intragovernmental Communications in Informal Rulemaking Proceedings, 45 Fed. Reg. 86407, 86407 (December 31, 1980). |
| 190. |
See Slaughter, 609 U.S., at 464 ("[The President] and [the President] alone is vested with "'[t]he executive Power'" of the United States.") |
| 191. |
See Exec. Order No. 12866, 58 Fed. Reg. 51735 (Oct. 4, 1993). For more information on the interagency review process, see CRS Report R48546, The Office of Information and Regulatory Affairs (OIRA): Overview and Major Responsibilities, coordinated by Meghan M. Stuessy and Taylor N. Riccard (2025). |
| 192. |
See Exec. Order No. 12866 at § 6(b)(4). |
| 193. |
A piece with Justice Rehnquist's dissent in State Farm, several scholars have argued that publicly disclosing internal ex parte communications which form at least part of the reason for the agency action should be viewed favorably by a reviewing court as providing political legitimacy to the rulemaking and to encourage a more transparent rulemaking process. Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 Yale L.J. 2, 40 (2009); Watts, supra note 138, at 726–45; Mendelson, supra note 5, at 1153. |
| 194. |
EPA, Message to EPA Employees from Administrator Zeldin: Transparency and Earning Public Trust in EPA Operations in 2026 (March 16, 2026) (Mar. 19, 2026), https://www.epa.gov/aboutepa/message-epa-employees-administrator-zeldin-transparency-and-earning-public-trust-epa [https://perma.cc/GEC3-XAW6]. |