It's Time to Make the Administrative Procedure Act Administrative

Abstract

This Article argues that the Administrative Procedure Act needs to be rewritten because it was ill-conceived from its inception. Its central defect is that it fails to comprehend the essential character of the modern administrative state. Instead, the procedures it imposes on administrative action are based on pre-administrative models of governance, and particularly on the model of judicial implementation of law that administrative agencies were specifically intended to replace. This is true not only of the APA's requirements for adjudication, but also of its requirements for rulemaking. Worse still, the APA leaves the remainder of the administrative process, which it implicitly and inaccurately characterizes as informal adjudication, almost entirely unregulated.

The recommendation is that the APA be redrafted in its entirety based on the standard, Weberian concept of bureaucratic governance. The most important feature of this concept is that administrative governance is organized around the principle of instrumental rationality. According to Weber, an action is instrumentally rational when it is based upon the actor's expectations about its consequences, that is, "when the end, the means, and the secondary results are all rationally taken into account and weighed." Applied to administrative agencies, this means: first, that the statute should require that the agency must assess the goals that it defines for itself on the basis of their pragmatic consequences; and second, that the statute should require that the agency assess all other administrative actions, whether rulemaking, adjudication, or the manifold executive actions characterized as informal adjudication (targeting, advising, planning, deploying resources, etc.) on the basis of their ability to achieve goals specified by the agency or the agency's superior. In reviewing administrative action, courts should be guided by this principle. Supplementary principles, for both the agency and the court, can be derived from Weber's conception of the agency as an hierarchical, continuously operating organization with a defined jurisdiction staffed by full-time employees chosen on the basis of their credentials. Based on these ideas, the APA can be redrafted in a manner that recognizes the distinctive character of modern administrative governance.

Keywords: administrative law, administrative procedure, administrative theory, bureaucracy, legal theory

JEL Classification: K10, K23