A Reform Agenda for Administrative Adjudication

Abstract

In August, the U.S. Justice Department issued a 129-page report entitled Modernizing the Administrative Procedure Act, based on a summit the department held at the end of 2019. As the title suggests, the report argues that now is the time to modernize the Administrative Procedure Act of 1946 (APA). Like most of the legislative APA modernization proposals in recent years, the Justice Department’s reform efforts largely focus on agency rulemaking. Absent from most conversations about APA reform is the modernization of administrative adjudication. Yet, the vast majority of regulatory actions today take place via adjudication, not rulemaking. As ACUS has documented, the United States has roughly 2,000 administrative law judges and more than 10,000 administrative judges who hold hearings and decide millions of cases each year.

If we turn our administrative reform attention toward agency adjudication, here are what seem to me to be the top four areas for reform. First, we must attempt to reconcile the constitutional tensions in administrative adjudication between adjudicator decisional independence and political control of agency adjudication. Second, we must reform the new world of agency adjudication that is not governed by the APA’s formal adjudication provisions in order to protect individuals navigating those adjudicative systems. Third, we must modernize mass agency adjudication through quality assurance measures, including improved agency appellate review and effective use of artificial intelligence. Fourth, and related, we must explore ways to eliminate the “refugee roulette” in immigration adjudication by bringing more consistency and procedural fairness to the system.

This reform agenda, sketched out in this Essay, identifies some proposals in each area that have been recommended by scholars, bar associations, federal agencies, and policymakers. In mentioning these various recommendations, I do not intend to endorse each one. In fact, some I would likely oppose. They present difficult policy considerations, and the pros and cons cannot be exhaustively examined in this Essay. But I hope this reform agenda will provide a roadmap for further empirical inquiry, as well as increased scholarly, policy, and political attention. With the 117th Congress and President Joe Biden taking office in January, the 75th anniversary of the APA may be the ideal time for such legislative reform. And adjudication reform efforts have the potential to draw bipartisan support—for reasons similar to why the First Step Act of 2018 succeeded in the 115th Congress.

Keywords: administrative law, agency adjudication, regulatory reform, APA, immigration, mass adjudication, separation of powers