Agency Choice of Policy Instrument

Although some agencies only possess, or only typically exercise, adjudicative power--the National Labor Relations Board (NLRB) is a good example, see Katie R. Eyer, Administrative Adjudication and the Rule of Law, 60 Admin. L. Rev. 647, 648-49 (2008) (noting that NLRB chooses almost exclusively to exercise adjudicative power)--and other agencies primarily, or even exclusively, exercise rulemaking power, the norm is for agencies to possess and exercise both of these powers.

This raises an important question: is an agency required to exercise one or the other of these powers in any particular case? The cases that follow not only lay out the ground rules that govern what administrative law scholar Elizabeth Magill called the "agency choice of policymaking form," see M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. Chi. L. Rev. 1838 (2004), but they also provide some context to help you determine why agencies might exercise discretion to favor one policymaking form over another. Both of these are important questions: the former because, well, it's the law; the latter because, as Eyer points out, "[m]any agencies, particularly in recent decades, have opted to exercise their lawmaking authority primarily or exclusively legislatively through the issuance of regulations." Eyer, supra, at 648.