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Administration by Treasury

David T. Zaring

University of Pennsylvania - Legal Studies Department

November 2010

Minnesota Law Review, Vol. 95, Pg. 187, 2010
U of Penn, Inst for Law & Econ Research Paper No. 11-01

Although the Administrative Procedure Act (APA) in theory regulates government policymaking, the agency that is both among the oldest and, as the financial crisis has revealed, one of the most important, does not play by its rules. The Treasury Department is rarely sued for its administrative procedure, makes fewer rules than do agencies that follow the APA more closely, and acts as if it is generally less bound by the nuances of process than do its peers.

In the Article, I examine the alternative administrative procedure that applies to the Treasury Department and illustrate the ways in which it does things differently. In some ways, the department’s absence from the usual suspects of administrative oversight, including the Office of Management and Budget, the D.C. Circuit, and the Federal Register, suggest that Treasury is essentially acting as an unsupervised agency; many observers have concluded that the Treasury Department’s response to the financial crisis amounted to an abandonment of the usual safeguards we expect in the modern administrative state. But a closer examination indicates that Treasury simply operates under a different model, one informed by its form, its remit, and its tasks – but not, at least not much, by ordinary administrative procedure. Its constraints come more from Congress, from internal controls, and from the large, but understudied, private bar that interprets what it is doing, than from notice, comment, rulemaking, and litigation.

Number of Pages in PDF File: 58

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Date posted: December 8, 2010 ; Last revised: December 21, 2011

Suggested Citation

Zaring, David T., Administration by Treasury (November 2010). Minnesota Law Review, Vol. 95, Pg. 187, 2010; U of Penn, Inst for Law & Econ Research Paper No. 11-01. Available at SSRN: https://ssrn.com/abstract=1722384

Contact Information

David T. Zaring (Contact Author)
University of Pennsylvania - Legal Studies Department ( email )
3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States

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