John Marshall Harlan II

“ In what other way would the administrative agency compel obedience to its invalid rule?
One cannot always have the best of both worlds. Either the rule-making provisions are to be enforced or they are not. Before the Board may be permitted to adopt a rule that so significantly alters pre-existing labor-management understandings, it must be required to conduct a satisfactory rule-making proceeding, so that it will have the benefit of wide-ranging argument before it enacts its proposed solution to an important problem. ”

“ Since the Labor Board's Excelsior rule was to be effective only 30 days after its promulgation, it clearly falls within the rule-making requirements of the Act. [1]
Nor can I agree that the natural interpretation of the statute should be rejected because it requires the agency to choose between giving its rules immediate effect or initiating a separate rule-making proceeding. An agency chooses to apply a rule prospectively only because it represents such a departure from preexisting understandings that it would be unfair to impose the rule upon the parties in pending matters. ”

“ The prevailing opinion explains its departure from our leading decisions in this area on the ground that: 'There is not the slightest uncertainty as to the outcome of (this) proceeding' on remand. Ante, n. ”