Bijal Shah (Boston College Law School) has posted Administrative Procedural Discretion (Cornell Law Review, forthcoming) on SSRN. Here is the abstract:
The conservative Supreme Court has established maximum presidential control over formal administrative adjudication, despite the resulting impact on independence and expertise in adjudicatory process. Concurrently, a progressive public law perspective advocates for agencies to be released from procedure to allow them to accomplish more, regardless of the fact that procedures create important guardrails for agency action. Both of these perspectives devalue the understanding that maintaining adequate and accessible process ensures that administrative adjudication is accountable to the people that agencies serve. Both views also overlook the large expanse of informal administrative adjudication that is neither conditioned by constitutional appointment requirements nor anchored by consistent statutorily mandated procedure. Furthermore, access to process has always been minimal in many informal adjudications and has further deteriorated over time due to—as this Article illustrates—administrative discretion.
This Article is the first to uncover and offer an overview of administrative “procedural discretion,” which it identifies as administrative discretion that impacts the contours and defensibility of administrative process in informal adjudication. This Article illustrates that procedural discretion originates from agencies and adjudicators themselves, reducing or eliminating process in a manner that reflects both the ongoing decline of administrative due process in the post-Goldberg era and ongoing legislative battles concerning the rights of disempowered communities.
Procedural discretion enables great variation among the processes underlying informal adjudication—not only across different types of adjudication, but also within the same category of adjudication. In entities including the National Labor Relations Board, State Department, and the immigration agencies, procedural discretion tends to limit the process underlying informal administrative adjudication, including aspects such as access to in-person hearings, the opportunity to provide testimony, and decisionmaking on the record.
Sometimes, procedural discretion is the result of reasonable pragmatic concerns about resources and efficiency that nonetheless serve to reduce access to or even wholly gatekeep individuals from process. Other times, administrative decisionmakers engage in expedited processes in response to powerful interests, thus disadvantaging vulnerable people. Under-resourced communities, and those in need of governmental support or protection, are perhaps more likely to be harmed by procedural discretion. Furthermore, despite Article III courts’ expertise in matters of process, neither procedural discretion itself nor the outcomes of decisions based in discretionary administrative procedure are necessarily subject to judicial review.
This Article argues that, overall, procedural discretion is in tension with the values and stability of proceduralism, which many assume to be a cornerstone of administrative legitimacy. Ultimately, procedural discretion has the potential to undercut administrative accountability to the communities served by informal adjudication in underexamined ways that escape oversight.
The existence and operation of procedural discretion, this Article suggests, should inspire and inform frameworks that ensure the quality and accessibility of administrative adjudicatory process. This Article prescribes neither heavy reliance on political accountability nor a one-size-fits-all approach to proceduralism. Rather, this Article’s suggested interventions emphasize agencies’ own institutional tools for managing their exercises of procedural discretion. In this vein, a turn to administrative and judicial review could be fruitful.
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