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University of Baltimore Law Review

Abstract

In Vermont Yankee, The United States Supreme Court established a paradigm for judicial review of administrative agencies' rulemaking actions. The Court held that Congress had established the maximum procedures that may be required of an agency undertaking informal rulemaking. These procedural requirements were established by section 553 of the Administrative Procedure Act, and courts generally are prohibited from imposing additional procedures upon agencies. Since the 1978 opinion was handed down, the lower federal judiciary has been exploring the possible implications of the Vermont Yankee rule. The author surveys the lower court opinions, and concludes that this lower court exploration has produced two results. First, lower courts can sidestep Vermont Yankee in three ways: by use of their power to substantively review the rulemaking record, by refusing to accept agencies' characterization of some rules as exempt from the notice and comment requirements of section 553 of the Administrative Procedure Act, and by developing the "constitutional constraints or extremely compelling circumstances" exception which the Court explicitly created in Vermont Yankee. The author calls upon the Supreme Court to close these paths of escape from the Vermont Yankee mandate by acting to more finely develop the precise nature of the judiciary's role in the review of informal rulemaking. Second, the author notes that the lower federal judiciary has improperly extended application of Vermont Yankee to review of agency adjudication, and asks the Court to clarify its stand on the relationship between Vermont Yankee and administrative action beyond the sphere of administrative rulemaking.

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