Seeing through a Preamble, Darkly: Administrative Verbosity in an Age of Populism and ‘Fake News’

51 Pages Posted: 8 Aug 2017 Last revised: 19 May 2018

See all articles by Alec Webley

Alec Webley

U.S. District Court, District of Connecticut

Date Written: February 1, 2018

Abstract

How does an ordinary citizen find out what the government is doing and why? One early method was pioneered by the federal Administrative Procedure Act (the “APA”). The APA law requires that when a government agency finalizes a rule, it publishes a preamble containing a “concise general statement of the rule’s basis and purpose.” But the public truth-telling function of these “preambles” has become undermined by their spectacular length, often to more than a thousand pages longer than their parent rules, making it virtually impossible for anyone (even lawyers!) to properly read them. Worse, the courts have made it clear that no rule will ever be thrown out for having a preamble that is too long — but a preamble might doom its parent rule by being too short.

This Article argues that the growth of the thousand-page preamble is not only a crying shame but quite possibly a shaming crime. The APA’s command that preambles be “concise,”, read in its proper context, requires an agency to limit what it says so as to communicate a rule’s basis and purpose effectively with the public, even (indeed especially) if the public does not comment on the proposed rule. Alas, without much thought or analysis, both agencies and courts re-purposed the preamble to facilitate technical, “hard-look” review of an agency’s reasoning, rather than serving the separate statutory mandate of effective public information.

By reading “concise” out of the statute, agencies and courts unintentionally eliminated a popular counterweight built into an act that otherwise empowered elites. By so doing, courts have deprived the administrative process of a measure of popular legitimacy, as well as a promising means of fighting false information in political life — by requiring agencies to tell a plain, accessible, and true story about a rule, and be scrutinized in their public engagement by the judiciary. I argue that in this populist moment, where the legitimacy of the administrative state is under strain, it is time to seriously consider reviving “concise,” and its vision for popular accountability, to bring a disenchanted public closer to the administrative process.

Keywords: Administrative Law, Democratic Theory, Excessive Boredom

Suggested Citation

Webley, Alec, Seeing through a Preamble, Darkly: Administrative Verbosity in an Age of Populism and ‘Fake News’ (February 1, 2018). 70 Admin. L. Rev. 1 (2018), Available at SSRN: https://ssrn.com/abstract=3014162 or http://dx.doi.org/10.2139/ssrn.3014162

Alec Webley (Contact Author)

U.S. District Court, District of Connecticut ( email )

915 Lafayette Boulevard
Bridgeport, CT 06604
United States

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