Good Cause for Goodness’ Sake: A New Approach to Notice-and-Comment Rulemaking

Notice and comment is a public participation process, first articulated in the Administrative Procedure Act (APA), that was heralded at the time as a critical innovation to engage the general population in the administrative agency rulemaking process. It has been crippled in the past fifty years, first by a series of cases—primarily at the circuit court level—which imposed new procedural requirements on agencies outside the text of the APA itself, and then by technological advancements that have enabled sophisticated parties to game the system while boxing others out. Rather than creating a democratic open-door process, notice and comment has become inequitable, inaccessible, and ineffective. Procedural requirements imposed not by statute but by judges have created both a resource management problem and a litigation trap for administrative agencies, at times preventing them from achieving the actual governance that rules and regulations are meant to advance. This Note offers agencies a solution already enshrined in the APA that would not require the exceedingly impracticable legislative action many proposed solutions rely on. The existing statutory tool—the good cause exception to notice and comment in section 553 of the APA—should be paired with a series of public engagement tools that are already available to agencies. Unlike notice and comment, these engagement methods are minimally resource-intensive and adapted to existing twenty-first century technologies. This approach preserves meaningful public participation in the rulemaking process while addressing many of the problems apparent in notice and comment without introducing new legislation, explicitly overruling any Supreme Court jurisprudence, or imposing new resource challenges on agencies.