Thread by @chris_j_walker

Earlier this week the Justice Department released a report focused on how to modernize the Administrative Procedure Act (APA): yalejreg.com/nc/new-justice… Like most of the legislative #adlaw reform proposals in recent years, DOJ's reform efforts largely focus on agency rulemaking.

(FWIW, I've written more about the various legislative proposals, in an @AdLawReview essay by the same title as the DOJ report: ssrn.com/abstract=29621….)

Absent from most conversations about APA reform is agency adjudication. Yet the vast majority of regulatory actions today take place in adjudication, rather than rulemaking -- as we explored at the 50th annual @DukeLawJournal symposium earlier this year: yalejreg.com/nc/video-and-d…

If we turned our #adlaw reform attention toward agency adjudication, here are what seem to me to be the top four areas for reform (in order of importance, I think, with some nonexhaustive examples of potential reforms). THREAD:

(1) Protect Decisional Independence: In recent years, courts have interpreted the Appointments Clause in a way that creates constitutional tensions in agency adjudication b/w the importance of political accountability and the dangers of political control (ssrn.com/abstract=32896…)

Because most agency adjudicators have been deemed by courts to be inferior officers (e.g., ALJs) and some principal officers (i.e., PTAB judges) under the Appointments Clause, the agency head must have the power to appoint them and perhaps even to remove them at will.

This constitutional interpretation leads to greater political accountability of agency adjudication, but risks undermining the decisional independence of agency adjudicators -- who may now feel pressure to decide cases for reasons other than faithfully applying law to facts.

Because this is constitutional law, Congress is limited in what it can do by statute to address this. Congress could, of course, move these adjudications to Article III courts, perhaps create Article I courts, or even create a standalone Article II administrative judiciary.

There are costs and benefits of these various legislative options. @ProfKentBarnett has also suggested a regulatory solution, in the form of self-binding impartiality regulations -- something that the President could explore. ssrn.com/abstract=35088…

(2) Reform "Type B" Adjudications: As @MelissaWasserma and I have coined it, we now live in a "new world of agency adjudication," where the vast majority of adjudicative hearings do not take place under the APA's formal adjudication provisions. ssrn.com/abstract=31295…

Instead, they take place in what Michael Asimow labels "Type B" adjudications. See @acus sourcebook: acus.gov/sites/default/…. The procedures and protections in those proceedings vary dramatically, as @ProfKentBarnett and others have explored, see, e.g.: ssrn.com/abstract=33200…

On how to reform Type B adjudications, @emilysbremer (in addition to Asimow, @ProfKentBarnett, and others) has done some very important work: See, e.g., papers.ssrn.com/sol3/papers.cf… & papers.ssrn.com/sol3/papers.cf…

Many positive reforms can take place inside the agencies through internal administrative law, where the agencies provide for additional procedures and safeguards. OMB has been doing important exploratory work on this front, as @ZaringDavid flags: yalejreg.com/nc/ombs-intere…

Congress could also modernize the APA to address Type B adjudications by adopting a bill of rights that applies to all agency adjudications where a hearing is required by statute or reg or by amending the APA to apply the formal adjudication provisions to Type B adjudications.

Indeed, back in 2005, the @ABAesq passed a resolution sponsored by @ABAAdLaw that recommends such reforms and includes a draft bill entitled Federal Administrative Adjudication in the 21st Century: americanbar.org/content/dam/ab…

(3) Improve Immigration Adjudication: The DOJ EOIR immigration courts system is one of the major Type B adjudications, and it has received a lot of scholarly and policy attention on the reform front. Several reforms that have been recommended by the ABA and others include:

(i) create an Article I immigration system, removing these adjudications out of DOJ;
(ii) rework how immigration judges are hired and retain (including resources to lessen heavy dockets) and what incentives exist to attract top lawyers to become IJs;

(iii) provide legal representation to noncitizens in removal hearings, or at least to youth in the process (a lot of empirical work has been done to underscore the importance of legal representation, see, e.g., @Ingrid_Eagly & Shafer ssrn.com/abstract=25811…);

(iv) increase the availability of administrative and judicial review for what @jenniferleekoh calls "shadow removals" -- expedited removal near the border, etc. -- see, e.g., ssrn.com/abstract=27696… & ssrn.com/abstract=31602….

Another potential, albeit less-sweeping immigration reform would be to shift the default for agency policymaking from adjudication to rulemaking -- something @shobawadhia & I explore in a forthcoming article: ssrn.com/abstract=36628…

(4) Quorum Commissions and Boards: Although not as pressing as the above three, Congress and the President could and should work to make sure that all agency commissions/boards with adjudicatory functions have a quorum to issue final decisions.

In identifying these four areas for reform and some potential reforms in each, I don't mean to endorse any particular reform (at least not in this thread). These are difficult policy questions, and the pros and cons can't be exhaustively detailed on Twitter.

But I think if either presidential candidate and/or Congress wanted to get serious about modernizing the APA, the focus must be on adjudication and not just rulemaking.

In sum, if we turn our focus to modernizing agency adjudication, these four would likely be my top priorities:
(1) Protect Decisional Independence
(2) Reform "Type B" Adjudications
(3) Improve Immigration Adjudication
(4) Quorum Commissions and Boards
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