The Preamble as Context

Posted by kelli.little on October 25, 2016

The Preamble as Context: The role of the preamble in the federal rulemaking process.

By: Gregory Cowan, WCCA Natural Resource Staff Attorney

I recently attended an oral argument in federal district court where attorneys from both sides were at a loss to describe for the court the appropriate weight it should give to a final rule’s preamble.  As I sat there in the gallery, thankful that I was not one of the attorneys on the spot, I vaguely recalled the discussion in my administrative law class during law school on that topic.  Admittedly, it was a discussion where I played no part and therefore was left wholly sympathetic to the plight of the attorneys speaking circles around the court’s simple question: What effect should a rule’s preamble have on the rule’s bearing?

Well, with the benefit of 1lb of sunflower seeds, encouraging music in the background, and expensive legal research products at my disposal, I set out to answer the court’s question.  So here goes.    

The role of a preamble in rulemaking, while not advancing substantive direction that binds an agency to act (that’s a role left to the body of the rule), essentially provides the foundation from which the rest of the rule ought to be fixed.  I say “ought to” for a reason, and at the risk of oversimplification, because the dictates cabined in the rule should be construed by the reader as being logically related to the foundation from which they are rooted.  In other words, the preamble sets up the rule by providing the underlying rationale for its promulgation, and in so doing, the preamble often outlines the approach the promulgating agency intends to take insofar as implementing the substance that follows.  Put yet another way, the preamble provides context.