Differentiating Legislative from Nonlegislative Rules: An Empirical and Qualitative Analysis

By Nadav D. Ben Zur

The elusive distinction between legislative rules and nonlegislative rules has frustrated courts, motivated voluminous scholarly debate, and ushered in a flood of litigation against administrative agencies. In the absence of U.S. Supreme Court guidance on the proper demarcating line, circuit courts have adopted various tests to ascertain a rule’s proper classification.

This Note analyzes all 241 cases in which a circuit court has used one or more of the enunciated tests to differentiate legislative from nonlegislative rules. These opinions come from every one of the thirteen circuits and span the period of the early 1950s through 2018. This Note identifies six different tests that courts have employed in this effort and offers a qualitative and empirical analysis of each. The qualitative analysis explains the underlying premise of the tests, articulates their merits and shortcomings, and considers how courts have applied them to particular disputes. The empirical portion of this Note uses regression analysis to ascertain how using or rejecting one or more of the tests affects a court’s determination of whether the rule is legislative or nonlegislative.

This Note classifies the different tests into two categories: public-focused tests and agency-focused tests. These two categories are defined by a principle that permeates administrative law jurisprudence: achieving a proper balance between efficient agency rulemaking and maintaining a proper check against unconstrained agency action. These two categories thus defined, this Note proposes a balanced approach that incorporates elements of both categories to identify and refine the proper test.