미국 행정법상 이유제시의 문제와 그 정도 - 행정절차법과 판례를 중심으로

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. The reasoned-explanation requirement is part of a much larger struggle to devise a successful theory of judicial review of administrative action. This problem is as old as administrative law itself, and no enduring theory has yet emerged. In fact, the courts have not developed a consistent approach to controlling agency discretion, and lacking an intelligible theoretical framework, the Supreme Court has oscillated between activism and restraint in reviewing agency decisions. As conceptions of the constitutional place of agencies change, so do doctrines of judicial review of administrative action. In theory, judges are supposed to supervise the regularity of agency decisions without imposing on an agency the reviewing court’s perception of which value choices are legitimate and which are not. But exercising such discipline can be difficult in practice. When regulations are concerned, remand usually delays, rather than prevents, the action the agency wants to take. One study found that agencies successfully implemented their policies in approximately 80% of the instances in which courts have originally remanded rules as arbitrary and capricious, and that the average delay between remand and recovery was about two years. The extent to which remand can and should be used in the context of tax regulations has not been tested in the courts and is in dispute among commentators. courts have developed a number of limitations on the required extent of explanation. Unsurprisingly, courts differ as to how they draw the contours of these limitations. The following are among the principal limitations. First, courts will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Accordingly, despite Chenery I, courts may accept post hoc explanations that merely illuminate reasons obscured but implicit in the administrative record. Similarly, explanation is unnecessary when the reason for the agency’s action is obvious. It is, after all, a hoary maxim that the law does not command performance of meaningless acts.