Gabriel H. Markoff
90 Texas L. Rev. 1065
In this Note, Mr. Gabriel Markoff argues that the doctrine of issue exhaustion may pose an unjustifiable barrier to diverse interest group participation in the administrative rulemaking process. He first discusses the need for pluralistic participation in rulemakings and postulates that issue exhaustion exacerbates the well-known dominance of rulemaking participation by regulated parties. After tracing the history of issue exhaustion, he presents an original survey of D.C. Circuit case law showing that issue exhaustion likely remains a highly effective barrier to judicial review by parties that do not submit comments in rulemaking comment periods. Next, Mr. Markoff argues that issue exhaustion renders toothless the concerns of public interest groups, small businesses, and other poorly financed groups that do not have the financial means to submit detailed, technical comments in rulemakings. This, he argues, is because agencies only listen to those parties who can use their ability to seek judicial review as leverage to negotiate favorable rule content and interpretations. Mr. Markoff concludes by proposing that issue exhaustion be modified from a bright-line bar against review to a presumption in favor of allowing judicial review, one which could be rebutted by a showing of adequate participation or bad faith on the part of the party seeking review.