General Rulemaking Grants and the Federal Trade Commission

The legal campaign against the administrative state has a new front: general rulemaking provisions. General rulemaking provisions authorize agencies, in an open-ended way, to write rules to carry out Congress's directives. Administrative agencies have relied on such provisions for decades. But over the last several years, some litigators, scholars, and judges have advanced limiting theories that would, if applied widely, greatly reduce the ability of agencies to execute federal statutes. The leading edge of this campaign is an effort to negate the rulemaking authority of the Federal Trade Commission (FTC). The reasoning employed by the FTC's opponents, already adopted by a district court, could affect thousands of rules regulating matters from bank powers to air quality. This Article carefully examines the challenge to the FTC's general rulemaking power and rebuts it. Through meticulous reconstruction of the FTC's history, it shows how judges and legislators transformed the FTC into a modern rulemaking agency in the 1970s and built an entire rulemaking apparatus into the FTC Act. It further shows that this is not a special case: Judges and legislators have long approached these provisions using ordinary principles of statutory interpretation. The current attack on their scope often employs the language of restraint. But it is narrowing the FTC's power that would mark a radical departure from administrative law principles, upending over fifty years of settled understandings about the meaning of the word "rules" as employed by legislators across the U.S. Code.