Reseña de Retroactive Rulemaking.

Retroactive Rulemaking. de Harvard Journal of Law & Public Policy Resumen del Libro

INTRODUCTION Can a federal agency create a new rule and use it to penalize past actions? Can the Department of Health and Human Services change Medicare reimbursement rules and use the new rules to force a hospital to refund amounts it was paid several years in the past? (1) Can the FCC set new rules reducing the scope of cellular telephone frequency licenses that it has already issued? (2) Can an application for Social Security benefits be denied because of a rule change that occurred after the application was made? (3) In Bowen v. Georgetown University Hospital, (4) the Supreme Court held that agencies could not adopt retroactive rules without explicit congressional authorization. (5) In the years since Bowen, however, courts of appeals have not applied this rule consistently. Consistent application has been difficult because of conflicting definitions of "retroactivity." These conflicting definitions flow from fundamental disagreements about the nature of "fair notice," the extent of the rights and actions that an anti-retroactivity presumption should protect, the temporal scope of such a presumption, and the necessity of reconciling retroactivity restraints with the principle of strong judicial deference to agencies. (6)

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