Remedial Restraint in Administrative Law

When a court determines that an agency action violates the Administrative Procedure Act, the conventional remedy is to invalidate the action and remand to the agency. Only rarely do the courts entertain the possibility of holding agency errors harmless. The courts’ strict approach to error holds some appeal: Better a hard rule that encourages procedural fastidiousness than a remedial standard that might tempt agencies to cut corners. But the benefits of this rule-bound approach are more elusive, and the costs much larger, than is commonly assumed. Across a wide range of cases, the reflexive invalidation of agency action appears wildly excessive. Although the adoption of a context-sensitive remedial standard would increase decision costs and generate inconsistency, the exercise of remedial restraint in appropriate cases may prove superior to a clumsy approach that treats every trans­gression as worthy of equal sanction