Hunters for Administrative Common Law
Murphy, Richard W.
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Some years ago, in Alaska Prof. Hunters Ass'n v. FAA (APHA), the D.C. Circuit held that an agency must use notice-and-comment rulemaking to change regulatory interpretations that have hardened into "administrative common law." The court was concerned that, absent such a requirement, agencies would enjoy excessive power to shift among plausible regulatory interpretations, thus sandbagging regulated parties. Administrative law scholars have roundly condemned APHA, but it is firmly embedded in the D.C. Circuit and has spread to others. Maybe the courts are on to something. Notwithstanding its flaws, APHA's invocation of "administrative common law" suggests an illuminating way to think about agency interpretive discretion. On a traditional approach to stare decisis, courts should have strong justifications for departing from their precedents, but the legislature is free to override them at any time for pretty much any reason. Translated into an administrative setting, this model might require an agency to have a strong justification for overruling its precedent by non-legislative means. This would allow agencies to overrule cheaply precedents that have proven to be unworkable or badly reasoned. Where an agency cannot offer a strong justification for overruling a precedent, it would need to use legislative rulemaking to do so. This requirement would tend to increase the cost of overruling workable, reasonable precedents upon which regulated parties have come to rely. Adopting the proposed "administrative common law" model might enhance agency interpretive consistency while at the same time preserving agency discretion to change course quickly and cheaply where there is a pressing need to do so. The model might also tend to shunt politically motivated efforts to shift from one reasonable interpretation to another towards notice-and-comment rulemaking, the agency procedure best suited for making political changes.