Jeffrey L. Rensberger*
We are accustomed to thinking of Article III courts and judges deciding cases and controversies. But, federal judges and courts have historically also engaged in official but nonadjudicative activities. In addition to a history of federal judges serving on nonjudicial commissions, federal judges and the Supreme Court participate in the rulemaking process for the federal procedural and evidentiary rules. Although some argue to the contrary, the Supreme Court has approved such arrangements in the face of separation of powers objections. Since Article III officers and courts perform nonadjudicative duties, the question arises of how federal courts who address a challenge to these nonadjudicative actions should review them. This article focuses on perhaps the most common enlistment of Article III entities in nonadjudicative activities: the creation of the Federal Rules of Civil Procedure (and other federal rules). Since these rules were created by federal judges, is some measure of deference due them when their validity is challenged? The federal procedural rulemaking apparatus resembles federal agency rulemaking, and in that context the Supreme Court has established a strong deference to agencies under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. This article concludes that the federal courts as adjudicators should not defer to the federal judges or courts as rulemakers, because to do so deprives parties of the opportunity to challenge a federal rule in an adjudicated proceeding with the procedural protections that accompany litigation. Finally, the same reasons that lead to a rejection of deference in this context apply equally to other agency rulemaking, leading to the implication that Chevron deference in general should be rejected.
* © Jeffrey L. Rensberger, 2018. Professor of Law, South Texas College of Law Houston. I wish to express my thanks to my colleagues, Jim Alfini, Josh Blackman, and Rocky Rhodes for their helpful comments on a draft of this article.