The Rulemaking/Adjudication Distinction

By far the most important categorization question in the APA is the rulemaking/adjudication distinction. As with the question of what is an agency, there are both statutory and constitutional dimensions to this question.

In the first set of cases, Londoner and Bi-Metallic, the Court deals with the distinction at the constitutional level. The question is what due process requires, and that question hinges on the categorical distinction between rulemaking and adjudication.

We then shift to the statutory question--the APA provides definitions of rulemaking and adjudication, and as we will see in later subsections, whether something is rulemaking or adjudication under the APA determines the steps that agencies need to take before taking either type of action.

There is a lot of overlap between how courts deal with the constitutional question and how they deal with the statutory question, due in large part to the fact that the APA's definition of rulemaking is considered by many to be incoherent. See Ronald M. Levin, The Case for (Finally) Fixing the APA's Definition of "Rule," 56 Admin. L. Rev. 1077 (2004). In fact, in 2016 the ABA Section on Administrative Law & Regulatory Practice (a section that you should all join!) issued consensus-driven recommendations to Congress to reform many sections of the APA, including the definition of "rule." See Christopher J. Walker, Modernizing the Administrative Procedure Act, 69 Admin. L. Rev. 629, 642 (2017).

The distinction between rulemaking and adjudication is anything but clear (despite its obvious importance), but see what you can come up with based on reading the following cases and definitions. We'll round out the fuller picture in class.