The Supreme Court’s Assault on Rulemakings

With recent opinions, the Supreme Court has made legislative rulesrules that carry the force of law and frequently are promulgated pursuant to notice and comment-less valuable, more onerous to enact, and more likely to be overturned by the judiciary than in years prior.And because agencies have other means by which to make policy, such as by bringing targeted enforcement actions and developing the law piecemeal in caseby-case adjudications, agencies may choose to promulgate regulations only when directed to by statute.This Essay argues that the Court's recent administrative law jurisprudence-Loper Bright v. Raimondo, Ohio v. EPA, Corner Post v. Board of Governors of the Federal Reserve System, and the Major Questions Doctrine cases-incentivizes agencies to forego creating legislative rules and to simply bring enforcement actions.It also explains that such a result is detrimental to the public interest as rulemakings provide ex ante certainty that adjudications lack, policies articulated via rulemaking are likely to be applied more evenly than those articulated via adjudications, and rulemaking allows for easier public participation in the policymaking process than adjudication.This Essay concludes by using a contemporary example of a regulator's inability to enact regulations to demonstrate the detrimental effects that the Court's jurisprudence is likely to place on regulated industries.