Agency rulemakings are a critical component of contemporary governance. This Article argues that there are a distinct set of modalities that characterize how agencies formulate and justify their rules. Just as the well-known modalities of constitutional interpretation capture the norms of constitutional discourse, the modalities of agency rulemaking offer a framework for understanding how agencies reason through and justify regulatory decisions. I show a common set of moves that agencies make across substantive contexts and across administrations. The rulemaking modalities are: (1) the public interest, (2) statutory purpose, (3) instrumental rationality, (4) technical expertise, (5) implementation considerations, and (6) cost-benefit analysis.
Exploring the modalities of agency rulemaking holds important lessons about the place of agencies in our system of government. First, attention to how the rulemaking modalities interact with each other—and in particular how agencies resolve tensions between modalities—provides an important study of how agencies balance competing pressures in justifying their policy choices. Second, attention to the modalities shows that agency rulemakings are methodologically distinctive—and distinctly appealing—relative to how Congress and the courts often make decisions. The rulemaking modalities are consistent with several desirable qualities that are often missing in other govermental decisionmaking: consideration of the full range of policy choices, attention to the likely consequences of various courses of action, and evidence-based reasoning for why government opts for one policy over other possibilities. Third, understanding the rulemaking modalities can shed light on how the “hard look” standard for judicial review of agency action operates, and how it should operate.
