In Remedial Restraint in Administrative Law, Professor Nicholas Bagley argues that we should replace administrative law’s ordinary remand rule with a more restrained, context-specific standard of first assessing whether the parties challenging the action were actually prejudiced by agency error. He bases this argument in part on his belief that the states challenging the Obama Administration’s sweeping executive actions on immigration suffered no harm from the Department of Homeland Security’s failure to engage in notice-and-comment rule-making. That is because, he argues, the states received notice through leaks to the media and had a chance to comment through their public complaints on cable news programs and elsewhere.
This Response agrees that administrative law should focus more on remedies. But of all the serious challenges facing the regulatory state today, the lack of this particular type of remedial restraint is not among them. On the contrary, the current rule-based ordinary remand rule plays an important role in preserving a proper separation of powers, in ensuring agencies exercise their congressionally delegated discretion in a nonarbitrary manner, and in facilitating a richer court–agency dialogue that allows courts to have a systemic effect on the administrative process. The benefits of the ordinary remand rule exceed any benefits of a more restrained, standard-like remedial approach. And the current rule avoids the costs of courts assessing, for instance, whether regulation by press leakage or regulation by Twitter is an acceptable, harmless substitute for notice-and-comment rulemaking.