Reclaiming Notice and Comment: Part II

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

Nancy Chi Cantalupo, Matthew Cortland & Karen Tani –

In an earlier post in this series, two of us (Cortland and Tani) described how the notice-and-comment process has entered the arsenal of a range of groups and organizers, many seeking to challenge the policies of the current administration. We made the case by highlighting grassroots efforts to explain to the public what notice-and-comment is and how to participate in it. The effects of these efforts seem clear. Note the more than 1,800 comments on Kentucky’s 2016 request for a Medicaid Section 1115 waiver (seeking to impose a work requirement, among other changes). Or consider the 266,000+ comments to the Department of Homeland Security after the agency proposed a rule that would make an immigrant’s use (or likely use) of public benefits grounds for inadmissibility.

Here we discuss a type of organizing that has followed in the wake of mass commenting efforts, focused on analyzing the content of comments and ensuring their due consideration. Our central example comes from the Department of Education’s recent notice of a proposed rulemaking (NPRM) regarding the meaning of Title IX for complaints of sexual harassment (an umbrella legal term that includes sexual violence). Perhaps unsurprisingly, given the activism around the ED’s interpretation of Title IX in the Obama years, the agency recorded over 124,000 comments—and spurred the creative cataloging initiative we spotlight here. By analyzing comments themselves, participants in this initiative seek to support public engagement with administrative law and vindicate the democratic values at the heart of notice-and-comment mandates.

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