« ForrigeFortsett »
clear legislative history, I incline to the view that some federal judges very likely would revert in part at least to their pre-Vermont Yankee role of prescribing hybrid procedures.
It is not difficult to understand the motivation and reasoning of the drafters of this Kennedy bill provision. Believing that the simple notice, comment, and statement requirements of section 553 are inadequate, they wanted to encourage the agencies to use hybrid procedures. But they knew that an across-the-board hybrid requirement would be impracticable. So they used the nudging device of listing the procedures, stating that agencies may employ them and leaving it to the agencies in the first instance and the courts in the second to define the precise meaning of their nudge.
The Kennedy drafters' quandary in this respect is not different from the predicament of the drafters of the Ribicoff bill's general hearing procedures. Whereas the Kennedy drafters wished to encourage hybrid rulemaking, the Ribicoff drafters Both were
wished to limit ora
Both had three
confronted with the problem of implementation.
to a single agency, as has been done, for example, in the case of FTC and the Department of Energy. But such an ad hoc solution is not available to the drafters of general, acrossthe-board legislation such as the Ribicoff and Kennedy bills.)
Given their respective objectives and the fact that their means of achieving those objectives were limited to the three methods I have listed--(1) specific legislative prescription; (2) agency discretion; and (3) judicial imposition--it seems to me that the respective choices of the Ribicoff and Kennedy drafters are entirely rational. Their solutions, nevertheless, are troubling, for the Ribicoff limitations on orality and cross-examination may have gone too far whereas the exhortations of the Kennedy hybrid proposal may, on the one hand, not go far enough in prodding agencies and on the other, go too far in providing a means for the senior partner in the court-agency "partnership" to impose hybrid procedures on the junior partner. How far is too far is, of course, a matter of judgment and the experiential data for making that judgment must await future events. Let us assume, however--and surely this is not a far-fetched assumption--that experience demonstrates the need for different solutions than those embodied in the present bills. What is to be done? The logical answer is: amend the legislation. But everyone knows how difficult it is to overcome the burden of inertia of our legislative system. Observe, if you will, that the APA provisions most closely related to the subjects under discussion have not been amended
46-505 0 79 19
since their enactment in 1946. A second answer is to seek corrective action by the judiciary. But the judiciary may be part of the problem rather than the architect of its solution and, in any event, the solution may be beyond the powers of the courts.
So where are we? Perhaps the answer is a frank recognition that ideal solutions often are impossible, that the best we can do is to select the least undesirable alternative, that the drafters did not promise us a rose garden. On the other hand, when a rational choice among existing techniques or methods produces a troubling result, should we not ask ourselves whether it may be possible to evolve a new process? After all, is it not the responsibility of lawyers to create new structures or processes which enable society to achieve social objectives?
If the problem of administrative procedure reform is viewed from this perspective, what might be developed? Can there be a process which would facilitate achievement of desirable procedural objectives and also provide a means for coping with the risk that administrative and judicial practices under a statute will not achieve the statute's objectives? I am not sure there could be such a process but I suggest the following as a rough outline of a model which deserves consideration and, perhaps, a trial.
Drafters of proposals such as the Ribicoff limitation on orality and cross-examination or the Kennedy encouragement of hybrid rulemaking would state their objectives, perhaps in terms
very similar to those employed in the present bills. But instead of relying on a rather explicit statutory directive, or on the agency's exercise of discretion, or on the courts' reviewing power to achieve the objectives, another agency would be authorized to issue rules or orders which would be binding on the agencies. Whatever may be the limitations of such a proposal, it has the obvious merit of providing a means for avoiding the disadvantages of the present system, for unlike Congress, the agency would enjoy a greater measure of flexibility and could, rather easily, change its rules in light of experience; it also avoids reliance on the operating agencies or on the courts.
There are, of course, a number of objections which might be advanced against such a proposal. For example, what reason is there to believe that procedures promulgated by such a procedure agency would be preferable to those adopted by the operating agencies? Might not the procedure agency and the operating agencies work at cross purposes? Is it an advance to impose another bureaucratic layer on what already is a bureaucratic labyrinth? What would be the membership of the new agency? Where in the structure of government would it be placed--in the executive branch or "independent"? Depending on the answer to that question, is there any reason to believe that Congress or the President (or the operating agencies) would be willing to vest the suggested power in a new agency? Should the procedural rules of the new agency be subject to
a legislative or executive veto or some other form of outside control such as a power to grant exceptions? Should the new agency be subject to a sunset provision? If so, at the expiration of what period of years? And so on and so on.
These surely are legitimate questions and no doubt others will readily occur to you. I think, at least I hope, that they can be answered satisfactorily. At the very least, it
seems to me that we should attempt to do so. Perhaps the Ribicoff and Kennedy drafters may wish to devote some staff resources to such an endeavor. There is reason to believe that at least the Kennedy drafters might find such an assignment congenial, for section 402 (a) of the Kennedy bill provides that a newly established Committee on Administrative Procedures of the Administrative Conference shall draft procedural rules to be utilized by agencies conducting proceedings subject to the Administrative Procedure Act. The rules are to be "consistent with" the APA and will become "binding on all agencies" if they are approved by a majority of the members of the Conference. Perhaps all that I have proposed could be achieved by enactment of Section 402 (a). I am not sure. In any event, although I do not assert that this is an idea whose time has come, I
do suggest that it deserves consideration by those interested in administrative procedure reform.