Administrative law is out of touch with forms of public administration developed since the Progressive and New Deal eras. It is strongly influenced by bureaucratic conceptions of administration that see (1) legitimacy in terms of prior authorization; (2) organization as a balance of stable rules and unaccountable discretion, and (3) error detection as a reactive, complaint-driven process. Yet, many public programs developed since the 1970s strive to establish post-bureaucratic or performance-based forms of administration that view (1) legitimacy in terms of exposure to public oversight; (2) administration as a matter of comprehensive but flexible planning, and (3) error detection as proactive. I illustrate the dominance of the latter style of organization in major contemporary regulatory and social welfare regimes. I also show that, while the administrative law of the casebooks and treatises ineffectively addresses key issues of accountability presented by the newer regimes, a parallel law of public administration has emerged in recurring provisions of modern regulatory and welfare statutes, in executive-branch initiatives, and in the activities of courts in institutional reform cases. This “noncanonical” administrative law is more attuned to performance-based organization. Canonical doctrine could improve by accommodating this alternative conception of organization.Simon concludes
The pre-occupation of the canon with judicial control of administrative action now seems anachronistic and parochial. As scholarship and teaching acknowledge increasingly, many of the most important legal determinants of administrative action arise from statutes other than the APA, executive initiatives only tenuously connected to rule- making and adjudication, and judicial practice in institutional reform cases. These initiatives tend to have a structure quite different from that of canonical doctrine. The differences in structure reflect differences in organizational premises. Canonical doctrine tends to pre-suppose bureaucratic organization. Noncanonical doctrine often arises from performance-based organization. Updating the canon thus requires broadening its
It also requires reconsideration of the canonical approach to the issue with which it has been most concerned – judicial review of discrete administrative action. As Edward Rubin says, the Administrative Procedure Act needs re-drafting. But significant re-orientation could occur without new legislation. Most of the canonical doctrine reviewed here arises from judicial interpretation of the Constitution and the general clauses of the APA (notably the “arbitrary, capricious” standard) and a half-acknowledged exercise of common law powers. The argument above supports suggestions for re-orientation along three broad lines.
First, judicial doctrine should be more attentive to oversight accountability.It is not controversial that courts should enforce legislative decisions where there are legislative decisions to enforce. However, contemporary legislation increasingly addresses situations where neither the dimensions of the problems nor their solutions can be known in advance of intervention. Legislation thus becomes procedural and involves fewer decisions of the kind that generate substantive “law to apply”. Courts should not try to squeeze determinate guidance out of texts that do not reflect any determinate understanding. At the same time, they should be more willing in situations of statutory ambiguity to intervene to require measures that reinforce political accountability. Chevron suggests the right sequence – first, consider whether the statute gives the agency discretion and then, whether the agency has acted reasonably. But the second step should be less interpretive and more procedural. It bears on reasonableness whether the agency has acted coherently, reflectively, and transparently.
Second, doctrine should be less intensely focused on rule-making and less deferential to non-rule-governed activity (in APA-speak, to informal adjudication). The burden of rule-focused review should be lessened, perhaps by eliminating pre-enforcement review or by more deference to procedurally adequate decisions. At the same time, the court should not leave non-rule-governed administration immune from “arbitrary-and-capricious” review. Recent judicial practice in structural reform cases shows that courts can intervene to enforce accountability without dictating the substantive terms of administrative practice. It also shows that courts can explicitly take into account the level of administrative dysfunction in deciding when intervention is appropriate. Canonical doctrine purports to rely on categorical indicators as to when intervention is appropriate. Structural reform doctrine, more plausibly, often insists on a showing of major dysfunction.
Third, appropriate error-detection efforts should not be framed exclusively in terms of duties of individual fairness to complainants. Responsible administration requires proactive efforts to identify and remedy errors, and it often also requires a diagnostic approach to error that seeks the systemic implications of particular problems.