The Administrative Conference of the United States has initiated a pilot program under which its staff will transmit to Congress federal judicial and agency adjudicative decisions that identify technical and related problems of consequence in statutes dealing with administrative procedure. Its purpose is primarily to provide legislative drafters with the information they need to ensure future statutes adequately reflect Congress’s intent, and only secondarily to suggest the possible need for remediating problems in particular statutes. (In no instance will the staff recommend legislative action in the absence of a formal recommendation adopted by a majority of the Conference’s voting members meeting together as the Conference’s Assembly.)
Opinions will be selected by Conference staff based on independent research and, most importantly, suggestions from federal agencies. Selected opinions will be transmitted, under the cover of a letter briefly identifying the issues warranting transmittal, to the Office of the Legislative Counsel in both the House and Senate, staff of the Committee on the Judiciary in both the House and Senate, and others, as appropriate. All letters will be made publicly available on the Conference’s website.
The program is inspired by a parallel project initiated by the federal judiciary over two decades ago under which federal courts of appeals transmit to Congress certain opinions that identify apparent technical errors in federal statutes. The Conference is indebted to the architect of that program, now-Chief Judge Robert Katzmann of the United States Court of Appeals for the Second Circuit, for suggesting that the Conference undertake the current project, and to Dr. Russell Wheeler for advice on its operations. Both are affiliated with the Governance Institute. Neither Chief Judge Katzmann nor Dr. Wheeler are, of course, responsible for the current program’s design or implementation.