Yesterday the Administrative Conference of the United States (ACUS) adopted a set of recommendations from my ACUS study (with Matt Wiener) on agency appellate systems, which embraces a number of best practices for improving internal agency review of hearing-level adjudications. Nothing too groundbreaking, and almost all (if not all) of which can be implemented by federal agencies themselves.
But administrative adjudication faces much bigger challenges that merit the attention of the Biden Administration and the 117th Congress. In a six-page essay forthcoming in the Spring 2021 issue of Regulation, I sketch out a reform agenda for agency adjudication. The Regulation magazine editors have kindly allowed me to post a draft of the essay to SSRN, available here.
In this essay, I focus on four main areas for reform:
- Attempting to reconcile the constitutional tensions in administrative adjudication between adjudicator decisional independence and political control of agency adjudication;
- Reforming 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;
- Modernizing mass agency adjudication through quality assurance measures, including improved agency appellate review and effective use of artificial intelligence; and
- Exploring ways to eliminate the “refugee roulette” in immigration adjudication by bringing more consistency and procedural fairness to the system.
I identify some proposals in each area that have been recommended by scholars, bar associations, federal agencies, and policymakers. In mentioning them, I don’t mean 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 a six-page essay. But I hope this reform agenda will provide a roadmap for further inquiry, as well as increased scholarly, policy, and political attention.
And perhaps naively, I’m hopeful that in the Biden Administration and the 117th Congress, at least some of these 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.