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85 Geo. Wash. L. Rev. Arguendo 1 (2017)

handle is hein.journals/gwargu85 and id is 1 raw text is: How the Supreme Court Derailed Formal Rulemaking Kent Barnett* ABSTRACT Based on archival research, this Essay explores the untold story of how the Supreme Court in the 1970s largely ended 'formal trial-like rulemaking by federal agencies in two railway cases. In the first, nearly forgotten decision, United States v. Allegheny-Ludlum Steel Corp., the Court held sua sponte that an agency was not required to use formal rulemaking, despite its significant historical provenance. That unpersuasive decision all but decided the second, better-known decision, United States v. Florida East Coast Railway, the following term. In response to both decisions, agencies abandoned formal rulemaking one of only four broad categories of agency action and policymakers and scholars largely ceased debating its virtues. Findings from the Justices'personalpapers including that the Court identified the issue only after oral argument and appeared deeply uninterested in Allegheny-Ludlum should revive the long- muted debate among scholars and Congress over formal rulemaking's utility and the continued vitality of the Court's railway decisions. INTRODUCTION Formal on the record rulemaking is as curious to contemporary minds as it was commonplace to the modem administrative state's founders. It refers to federal agencies' promulgation of regulations under the Administrative Procedure Act (APA)1 based on a closed record from a trial-like hearing with witnesses, cross-examination, an administrative law judge (AL) or other hearing officer, and findings of fact and law.2 It contrasts with more familiar, informal notice-and-comment rulemaking, which has neither trial-like procedure, closed record, nor specific findings of fact or law.3 In two railroad cases decided in the early 1970s, the Supreme Court allowed formal rulemaking to fall largely into desuetude with little fanfare.4 Given formal rulemaking's then-growing reputation for furthering administrative lethargy and interest-group capture, few lamented * Associate Professor, University of Georgia School of Law. I very much appreciate helpful comments and materials from Gary Lawson, Ron Levin, Aaron Nielson, and Miriam Seifter. I am also very grateful to the editors of The George Washington Law Review for their careful attention to my Essay. 1 Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (codified as amended in scattered sections of 5 U.S.C. (2012)). 2 See generally 5 U.S.C. §§ 553, 556-57 (2012) (outlining the administrative rulemaking process). 3 See id. § 553. 4 See infra notes 10, 17 and accompanying text. Jan. 2017 Vol. 85

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