Why Adjudicate?

Adjudication is used primarily for five overlapping reasons: agency convenience, advantages presented by incrementalism, suitability for resolving conduct and application cases, equity and compassion, and satisfaction of constitutional procedural due process. Despite its costs and difficulties, adjudication has several advantages for agencies. It generally affords them considerable flexibility in enforcing policy. This is especially true when agencies have the discretion to initiate cases and invest their enforcement resources wherever they deem most appropriate.

When agencies have broad discretion because there is no clear law to apply, they may find it easier to change policy by adjudicating than by rulemaking. Rulemaking and rule rescission are publicized through the Federal Register.
They can prompt comments from any person, group, or entity that cares to offer them. Broad participation, coupled with requirements for cost-benefit or various impact analyses, can make establishing a satisfactory rulemaking record arduous.

Adjudication generally attracts less public attention. Participation can be restricted, and adjudication is subject to weaker legislative and executive oversight than rulemaking. Agency adjudicators are not required to consider the impact of their decisions on sets of specific policy concerns that are extraneous to their agencies’ core missions, such as environmental justice, families, protecting small business, and federalism.

Adjudication also affords agencies flexibility in that it is difficult to win legal challenges against incremental—or even abrupt—policy changes introduced in individual adjudicatory decisions. An agency can usually distinguish the basis of a new adjudicatory order from an earlier precedent in terms of the specific facts, changes in public policy or economic concerns, technological developments, and other considerations that a rational decision maker should take into account.