Federal Administrative Law: How Agencies Make Rules

Federal administrative agencies issue thousands of rules each year that have the force of law — often with more practical impact on daily life than the statutes Congress enacts. Understanding how agencies make rules, and how those rules can be challenged, is increasingly important for businesses, advocates, and citizens affected by federal regulatory action.

The Rulemaking Process

Most significant federal rules go through notice-and-comment rulemaking under the Administrative Procedure Act (APA). The process begins with a Notice of Proposed Rulemaking (NPRM) published in the Federal Register. The public — individuals, businesses, advocacy organizations — has an opportunity to submit written comments. The agency must consider all significant comments and respond to them in the final rule. A final rule typically takes effect 30 days after publication, though major rules affecting the economy may have longer effective dates.

Judicial Review

Agency rules can be challenged in federal court under the APA's arbitrary and capricious standard — courts will set aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The Supreme Court's 2024 decision in Loper Bright Enterprises v. Raimondo overruled the Chevron doctrine, eliminating the deference courts had previously given to agencies' reasonable interpretations of ambiguous statutes. This shift increases the scrutiny courts apply to agency interpretations of their own authority.

Major Questions Doctrine

The Supreme Court has developed the major questions doctrine as a further constraint on agency rulemaking. Under this doctrine, an agency must have clear congressional authorization before it can regulate matters of vast economic and political significance. The doctrine has been used to limit EPA climate regulations, vaccine mandates, and student loan forgiveness — reshaping the boundaries of administrative power.