Law Commons^™

National Security Rulemaking, Robert Knowles

Florida State University Law Review

Agencies performing national security functions regulate citizens’ lives in increasingly intimate ways. Yet national security rulemaking is a mystery to most Americans. Many rules—like those implementing the National Security Agency’s vast surveillance schemes—remain secret. Others are published, but the deliberations that led to them and the legal justifications for them remain hidden.

Ordinarily, these rules would undergo the Administrative Procedure Act’s notice-and-comment process, which has earned wide, if not universal, praise for advancing democratic values and enhancing agency effectiveness. But a national security exception from notice-and-comment in the APA itself, along with the overuse of classification authority, combine to insulate …

Reasoned Explanation And Irs Adjudication, Steve R. Johnson

Scholarly Publications

Under the Administrative Procedure Act (APA), an administrative action can be invalidated as arbitrary and capricious if the agency fails to sufficiently explain the reasons for its choices. This principle applies to agency adjudication as well as to agency rulemaking. How does this principle apply to IRS adjudications? Examining five paradigms of IRS decisionmaking, this Article first establishes that the IRS does engage in APA–style adjudication. The Article then examines tax-specific explanation requirements and asks whether a more robust explanation duty patterned on the APA should be imposed on IRS determinations. Based on a variety of legal and prudential considerations, …