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Cornell Law Review

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administrative procedure, regulation, governance, resourse allocation


Administrative Law | Law


The Administrative Procedure Act (APA) has been out of date from the day it was written because it fails to address the administrative character of the modern state. The APA imposes procedural requirements on agency rulemaking and adjudication, two activities that are singled out because they resemble legislation and judicial decision making in the premodern state. The requirements for adjudication are based on the procedural rules that govern courts; the requirements for rulemaking would be based on the procedural rules that govern legislatures, but because very few such rules exist, they are also based on the rules that govern courts. Courts then enforce these requirements according to vague, nearly incomprehensible standards, further judicializing the APA 's requirements.

This Article recommends that a new, administratively oriented APA be drafted. The statute should reflect the premise that the modern administrative state is a distinctively new mode of governance, founded on the principle of instrumental rationality. Procedural requirements should be based on this principle and should apply to all administrative action--not only rulemaking and adjudication, but also the policy making and implementation functions that comprise the bulk of administrative action. These requirements would ensure that agency action be reasonably designed to achieve the goals stated by the legislature or by the agency itself They would be enforced by Congress and the administrative hierarchy as well as by courts, and the standards for court enforcement would be clarified to avoid judicialization.



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