Rulemaking

In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.

By bringing detailed scientific and other types of expertise to bear on policy, the rulemaking process has been the means by which some of the most far-reaching government regulations of the 20th century have been created.

However, the growth in regulations has fueled criticism that the rulemaking process reduces the transparency and accountability of democratic government.

[1] Legislatures rely on rulemaking to add more detailed scientific, economic, or industry expertise to a policy—fleshing out the broader mandates of authorizing legislation.

Many find that obscure and complex rulemaking tends to undercut the democratic ideal of a government that is closely watched by and accountable to its citizens.

If the agency wants to make the rule effective sooner, it must cite "good cause" (persuasive reasons) as to why this is in the public interest.

Generally, agencies produce an official gazette, or periodical for publishing all rulemaking notice, such as the Federal Register.

In essence, the accountability of the rulemaking system assumes that the public does take note of all of the notices in the Federal Register, which can run over a hundred pages per day.

In practice, many industry or public advocacy lobbyists and lawyers monitor the Federal Register Table of Contents every day by email on behalf of their constituents or clients.

Holding agencies accountable for objective, fact-based rulemaking requires maintaining a formal record of the facts and analysis behind the rule.

Traditionally, courts are reluctant to step into the shoes of the technical experts and re-open the decisions made in the agency's detailed analysis.