The Automated Administrative State: A Crisis of Legitimacy

Artificial Intelligence

Article Snapshot

Author(s)

M. Ryan Calo and Danielle Citron

Source

Emory Law Journal (forthcoming)

Summary

Federal and state agencies increasingly use automation and software to carry out their responsibilities, resulting in a loss of due process and accountability. However, some agencies use technology effectively.

Policy Relevance

Agencies should use automation to enhance fairness and effectiveness, not simply to cut costs.

Main Points

  • Federal and state agencies increasingly rely on automation, software, and algorithms to carry out their responsibilities, often resulting in bizarre outcomes and denial of rights and benefits.
     
    • One amputee was denied nursing care by a state agency, as he had "no foot problems."
       
    • Agencies often cannot explain how the system works or addresses errors.
       
  • Judicial review of automated decisions is difficult because the systems do not create an audit trail, and judges have a strong tendency to defer to a computer's findings.
     
  • Legislators delegate authority to agencies because of a need for regulators’ expertise and for nimble responses to complex problems; however, automation of agency functions may foreclose the agency’s exercise of discretion and expert judgment, undermining arguments for agencies’ legitimacy.
     
    • When a machine takes on a task previously committed to a human being, often, guarantees of accountability, due process, and transparency evaporate.
       
    • Constitutional doctrines approving the delegation of legislative authority to human beings do not address the legitimacy of further delegation to machines.
       
  • Administrative agencies are underfunded, and agencies should not be abandoned because they are driven to use automation by political and economic forces.
     
  • Agencies can use advances in technology effectively; for example, police forces can use algorithms to identify officers at greater risk for use of excessive force, leading to a reduction in misconduct.
     
  • Effective automation furthers values such as access, quality, and self-assessment; these systems make the administrative state fairer and more effective, and are not just designed to reduce costs.
     
  • Machines are increasingly good at modelling complex situations, and could be used effectively to simulate the effect of new regulations.
     
  • Agencies should use automation to meet more stringent standards of governance, although it will be hard to distinguish enhancing technologies from inefficient technologies in advance.
     

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