Meet Me in the Middle: The Search for the Appropriate Standard of Review for the APA's Good Cause Exception

By Golinghorst, Kelli M. | Iowa Law Review, March 2018 | Go to article overview

Meet Me in the Middle: The Search for the Appropriate Standard of Review for the APA's Good Cause Exception


Golinghorst, Kelli M., Iowa Law Review


I. INTRODUCTION

In response to the ever-growing network of federal administrative agencies in the United States, Congress passed the Administrative Procedure Act ("APA") in 1946.1 The Act was meant to govern the agency functions of rulemaking, adjudication, and licensing. Most importantly, the Act provided for agency accountability by requiring agencies to notify the public of proposed rules and to allow the public to participate in the rulemaking process.2 Today, more than 70 years after the passage of the Act, the network of federal administrative agencies has grown significantly.3 There are "2,840,000 federal workers in 15 departments, 69 agencies and 383 nonmilitary sub-agencies."4 As a result of such growth, many scholars worry that the rise of a fourth branch challenges America's constitutionally mandated system of checks and balances. This fourth branch has been described as an "administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency."5 This network of federal administrative agencies has more "impact on the lives of citizens" than the legislative, executive, and judicial branches combined.6

In fact, most of the country's federal "laws" are actually rules and regulations that federal agencies have promulgated and subsequently adopted without significant oversight or accountability.7 One study found that in 2007, Congress passed only 138 public laws, while federal agencies enacted nearly 3,000 rules and over 60 significant regulations.8 Of course, Congress has the power to create federal agencies, delegate legal authority, and control the purse strings, but any attempt to rein in the vast network of federal administrative agencies by cutting their funding would be futile and akin to "running a locomotive with an on/off switch."9 Although federal agencies are also subject to judicial review, the judiciary grants broad deference to agencies, especially when agencies are interpreting laws and determining the scope of their jurisdiction.10 One area of agency action where the level of judicial deference is not clear is when agencies invoke the good cause exception to the informal rulemaking process.

When agencies invoke the good cause exception, there are two main standards of review, de novo and "arbitrary and capricious"-circuit courts have not consistently applied either. For example, consider challenges to the Attorney General's use of the good cause exception in promulgating a rule that retroactively applies the Sex Offender Registration and Notification Act ("SORNA").11 The Fourth and Sixth Circuits review these cases using a de novo standard of review, while the Fifth and Eleventh circuits apply the more deferential "arbitrary and capricious" standard of review.12 The circuit split on this issue has created an ambiguity that frustrates the legislative purpose of the APA and fails to provide federal agencies with clear guidance on how to properly invoke the good cause exception in the future.

This Note argues that both the de novo standard and the "arbitrary and capricious" standard are inadequate. It then proposes the Supreme Court adopt a mixed standard that fulfills the purpose of the APA and serves as a clear guide to agencies for future use of the good cause exception. To begin, Part II will provide a summary of the history and legislative purpose of the APA, outline the informal rulemaking process and its exceptions under the APA, and detail the use of the good cause exception through the example of SORNA. Part III examines the two competing standards of review, de novo and "arbitrary and capricious," that the circuit courts employ when reviewing the Attorney General's use of the good cause exception; it also highlights the relative weaknesses and inadequacies of each standard. Part IV argues that the Supreme Court should grant certiorari to establish a mixed standard of review when reviewing challenges to the good cause exception. …

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