Document Type
Article
Publication Date
2024
Abstract
The law cannot be kept secret. We cannot comply with rules that we do not know. Nor can we question their legitimacy, which is both our right and our duty as citizens. And yet, a substantial body of law applied in this country is difficult for anyone but federal agency insiders to piece together. Rather than publishing regulations that lay out standards of conduct for the future, many agencies interpret the law, and articulate and implement new policies, as they go. Those subject to the law they implement are left to piece the rules together by studying whatever information is available about the individual decisions. This undermines the rule of law. This Article describes an administrative mechanism that can help restore the rule of law. That mechanism is a petitioning procedure, and this suggestion is based on studying decades of petitioning at the one federal agency with a formal procedure for accepting and considering any type of petition from any interested party — the Food and Drug Administration. If an agency faces a meaningful threat of judicial review in litigation brought by a petitioner, a petition can prompt it to articulate and explain its statutory interpretations and regulatory policies publicly, rather than simply implementing and illustrating policy as it makes case-by-case decisions. A petition back by the meaningful threat of judicial review can also force an agency to comply with a statutory mandate or correct errors in law or fact. In short, petitions—some petitions, that is—can increase transparency and through it contribute to the accountability of the administrative state.
Recommended Citation
Erika Lietzan,
Petition Power, 74 American University Law Review 107
(2024).
Available at: https://scholarship.law.missouri.edu/facpubs/1229