Alec Anthony Webley has an interesting article, Seeing through a Preamble, Darkly: Administrative Verbosity in an Age of Populism and ‘Fake News’, forthcoming in the Administrative Law Review. The article argues that the purpose of the APA’s requirement that agencies provide a “concise general statement of [a rule’s] basis and purpose” is defeated by the length and verbosity of modern rulemaking preambles. Webley argues that courts have contributed to this problem by finding fault only in too-short preambles, and not also in preambles that are too long to qualify as “concise” under the statute.
From SSRN, here is the abstract:
How does the ordinary voter find out what the government is doing and why? One early method was pioneered by the federal Administrative Procedure Act (the “APA”). This law required (and still requires) that when a government agency finalizes a regulation, it publishes a “concise general statement of the rule’s basis and purpose.” But the public truth-telling function of these “preambles” has become undermined by their spectacular length, often to more than a thousand pages, 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 having a preamble that is too long—but a very many preambles have doomed their parent rules 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. “Concise” is a binding statutory word that, read in its proper statutory and historical context, requires an agency to use the preamble to communicate effectively with the public, even (indeed especially) if the public does not comment on the proposed rule. Technical scrutiny of a rule by the courts, I show, was never intended to be based on the preamble. The preamble was to be used by the public at large, so that the public could receive fair notice of what the final rule entailed and then hold government accountable for its reasons for doing so. 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.
This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.