An Insider View of Federal Rulemaking


The process of establishing public policy is changing rapidly. While Congress still legislates and the executive branch still administers, the procedures under which those processes occur are transforming how corporate America interacts with federal, state, and even local governmental entities. This change is putting a premium on having partners who can help companies navigate the new terrain and advise on the best course of action to achieve the most favorable outcome.

Key Takeaways

  • Federal agencies can issue legislative rules that have the force and effect of law, or interpretive rules or other types of formal guidance that also impact stakeholder rights and obligations. Knowing which type of rule is under consideration, whether and when to comment on a proposed rule, and whether and when to challenge a rule is increasingly important in a shifting regulatory landscape.
  • Recent developments include the increasing use of presidential executive orders to launch new policy initiatives or reverse/negate prior administrations’ policies, and individual states or groups of like-minded states are moving into the policy arena to address issues previously seen as being within the purview of the federal government. State attorney generals likewise are initiating court challenges to federal policies they oppose or filing briefs in support of policies they support.
  • The executive branch publishes spring and fall regulatory agendas (via the Office of Management and Budget (OMB)), which identify regulatory plans, priorities, and timing. But stakeholders can also monitor potential activity and gain more detailed insight by reviewing executive orders and congressional activity—not just bills but oversight requests, hearings, and testimony—as well as tracking public statements by political agency leadership at town halls and speeches.
  • When deciding whether to comment on a proposed rule or other request for information, a thorough analysis of the scientific backup or other reasoning for a proposed rule is worthwhile in any comment. It makes the case for the agency to act on your comment, and creates a record that can be used later to challenge the rule, particularly if the agency does not rebut or provide reliable data to support the rule, which in turn helps a reviewing court determine how much deference to give to the agency’s determination.
  • The need to comment is even more urgent than usual, as litigation over rulemaking becomes more prevalent and the need to rely on the administrative Record becomes essential. Comments to rules—while they may feel futile today—will be useful down the road as lawyers seek to use the rulemaking record in their cases.
  • Two executive orders addressing agency subregulatory guidance were issued on October 9:
    1. Promoting the Rule of Law Through Improved Agency Guidance Documents, which requires agencies to post their guidance on easily accessible websites and requires OMB and agencies to develop procedures for issuing guidance
    2. Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication, which imposes new requirements before agencies can rely on guidance in enforcement/adjudication