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ACUS judicial-review committee debates whether preamble guidance should prioritize aiding judicial review
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Summary
At an ACUS judicial-review committee meeting, members praised Dan Deacon’s draft on regulatory preambles but split on whether recommendations should primarily help agencies survive judicial review or instead serve broader explanatory and notice functions; members asked staff to add case-law context and to refine wording across recommendations.
The Administrative Conference of the United States’ judicial-review committee met to discuss a draft report and recommendations on drafting regulatory preambles. Consultant Dan Deacon summarized the project as “best practices for regulatory preambles in light of recent developments in judicial review,” telling members the draft seeks practical, general guidance rather than one-size-fits-all rules. Deacon said the project drew on interviews with 19 agency rule drafters and a review of case law and recent agency preambles.
Why it mattered: committee members pushed staff to be explicit that the project’s focus is on improving preambles so agencies can explain and defend decisions in court while preserving other functions of preambles (public notice, explanation to regulated parties). Several participants urged clearer connections to recent Supreme Court doctrinal developments—especially LoperBright and related statutory-interpretation questions—so readers understand what legal pressures motivated specific recommendations.
Members’ positions split along two lines. Some, including Bill Funk, said the recommendations should make explicit that they are aimed at helping preambles survive judicial review: “This recommendation should be about trying to write a preamble that helps you survive judicial review,” Funk said. Others, including Kristen Hickman, argued that aiding judicial review and clarifying an agency’s reasoning are complementary objectives: “Maximizing the likelihood that a rule will be upheld on judicial review and the points that Bernie is raising are not mutually exclusive,” Hickman said, urging the committee not to treat the aims as opposed.
The committee also debated the project title. Alan Morrison recommended using the APA term “statement of basis and purpose” rather than the more informal word “preamble,” telling staff to consider whether the change would aid legal clarity. Members agreed to table any final title decision pending more revision time.
What’s next: staff will incorporate the morning’s suggestions—adding clearer introductory context about the case law motivating the recommendations and tightening language that could be read as prescriptive—and circulate redlines ahead of the next meeting on April 15. The meeting did not vote on any formal motions or adopt final language at this session.
