The Automated Administrative State: A Crisis of Legitimacy

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Administrative Law Automation Danielle Citron

Questions whether adopting automation undermines the legitimacy of the administrative state, which is theoretically rooted in expertise

Notes

The legitimacy of the administrative state is premised on our faith in agency expertise

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broader, structural critiques of the legitimacy of agencies that automate. Automation throws away the expertise and nimbleness that justify the administrative state, undermining the very case for the existence and authority of agencies.

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adopts tools only when they enhance, rather than undermine, the underpinnings of agency legitimacy

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Administrative agencies are a constitutional anomaly. They are permitted to exist, we are told, because the world is complicated and requires expertise and discretion beyond the capacity of legislatures.

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Judicial review had limited value in light of the strong psychological tendency to defer to a computer’s findings

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automated systems that defy explanation even by their creators

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guarantees of transparency, accountability, and due process fall away

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Now that machines make these decisions, law or technology must change to restore the rights and values afforded individuals under the previous arrangement

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whether automation by agencies threatens to erode long-standing justifications for having agencies at all

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“functionalist” rationale for delegation rests on the affordances of bureaucracies, particularly their ability to accrue expertise and the prospect of flexible and nimble responses to complex problems

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agencies are turning to systems in which they hold no expertise, and which foreclose discretion, individuation, and reason-giving almost entirely

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agencies should consciously select technology to the extent its new affordances enhance, rather than undermine, the rationale that underpins the administrative state

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a growing sense of unease

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Computers, as deployed by the government, resist accountability and rob participants of their dignity, largely by removing their capacity to understand the processes to which they have been subjected.

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programming mistakes constituted ultra vires assumption of rulemaking power

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“procurement as policy,” whereby agencies hide policies changes in harder to review decisions about the purchase of machine learning systems.

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assumption that the substitution of technology for people reduces transparency, accountability, or some other value

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substitution approach represents, in a sense, the legacy of the thinking of cyberlaw pioneer Lawrence Lessig

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Lessig postulated that law is only one of four “modalities” of regulation

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new technologies reveal latent ambiguities in the law

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substitution approach inevitably misses the opportunity to reexamine first principles.

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fails to consider whether the existing status quo is sufficient in light of new technical capabilities

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Justifying the administrative state

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administrative agencies by their very nature violate the text and spirit of the Constitution in exercising and even comingling powers committed to separate branches

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legislature is not free to delegate its authority to a separate body

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by vesting agencies with the authority to make, enforce, and interpret rules, Congress violates the doctrine of separation of powers implicit in the tripartite structure of government

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question whether an objective function, in the sense of an arbitrary goal the system seeks to maximize, bears the slightest resemblance to an intelligence principle directed at agency officials

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