SEEING THROUGH A PREAMBLE, DARKLY: ADMINISTRATIVE VERBOSITY IN AN AGE OF POPULISM AND FAKE NEWS

• 成果类型: Article
• 署名作者: Webley, Alec
• 署名单位: New York University
• 刊物名称: ADMINISTRATIVE LAW REVIEW
• ISSN/ISSBN: 0001-8368
• 发表日期: 2018
• 页码: 1-52
• 关键词: procedure act; rulemaking; ossification; DEMOCRACY; COURTS; media; LAW; PARTICIPATION; performance

摘要

How does an ordinary citizen find out what the government is doing and why? One early method was pioneered by the Administrative Procedure Act (APA). The APA requires that when a government agency finalizes a rule, it publishes a preamble containing a concise general statement of the rule's basis and plopose. But the public truth-telling function of these preambles has become undermined by their spectacular length, often to more than a thousand pages longer than their parent rules, making it virtually impossible for anyone (even lawyers!) to properly read them. Worse, the courts have made it clear that no rule will ever be thrown out for having a preamble that is too long-but a preamble might doom its parent rule by being too short. This Article argues that the growth of the thousand-page preamble is not only a crying shame but quite possibly a shaming crime. The APA's command that preambles be concise, read in its proper context, requires an agency to limit what it says so as to communicate a rule's basis and purpose effectively to the public, even (indeed especially) if the public does not comment on the proposed rule. Alas, without much thought or analysis, both agencies and courts re-purposed the preamble to facilitate technical, hard-look review of an agency's reasoning, rather than serving the separate statutory mandate of effective public information. By reading concise out of the statute, agencies and courts unintentionally eliminated a popular counterweight built into an act that otherwise empowered elites. By so doing, courts have deprived the administrative process of a measure of popular legitimacy, as well as a promising means of fighting false information in political life-by requiring agencies to tell a plain, accessible, and true story about a rule, and be scrutinized in their public engagement by the judiciary. I argue that in this populist moment, where the legitimacy of the administrative state is under strain, it is time to seriously consider reviving concise, and its vision for popular accountability, to bring a disenchanted public closer to the administrative process.