Working paper developed with support from the Pacific Legal Foundation
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Abstract
Notice and comment rulemaking under the Administrative Procedure Act of 1946 (APA) is the most well-known way the executive branch makes policy through its executive and independent agencies by creating binding rules of general applicability. Less considered is the power of agencies to effectively make policy of general applicability through individual determinations, known as informal adjudications under the APA, which can create a series of precedential decisions which cumulatively can become de facto policy, and the issues for stakeholders that policy made in such a fashion presents.
In this paper I will briefly review some manners through which agencies can make policy through precedential adjudications. Next, I will turn to some of the process and fairness considerations that arise when agencies take this approach, in particular the practical inability of a stakeholder to seek redress of a potentially outcome-determinative decision in the course of the adjudication or the difficulty in receiving a final agency action to even challenge judicially. I will then conclude by offering some suggestions for addressing these concerns going forward.