Issue Exhaustion in Pre-Enforcement Judicial Review of Administrative Rulemaking

The doctrine of issue exhaustion generally bars a litigant challenging agency action from raising issues in court that were not raised first with the agency.  Although the doctrine originated in the context of agency adjudication, it has been extended to judicial review of challenges to agency rulemakings.  Scholars have observed that issue exhaustion cases “conspicuously lack discussion of whether, when, why, or how [the issue]...