Replacing Bureaucrats with Automated Sorcerers?

Abstract

Abstract Increasingly, federal agencies employ artificial intelligence to help direct their enforcement efforts, adjudicate claims and other matters, and craft regulations or regulatory approaches. Theoretically, artificial intelligence could enable agencies to address endemic problems, most notably 1) the inconsistent decision-making and departure from policy attributable to low-level officials' exercise of discretion; and 2) the imprecise nature of agency rules. But two characteristics of artificial intelligence, its opaqueness and the nonintuitive nature of its correlations, threaten core values of administrative law. Administrative law reflects the principles that 1) persons be judged individually according to announced criteria; 2) administrative regulations reflect some means-end rationality; and 3) administrative decisions be subject to review by external actors and transparent to the public. Artificial intelligence has adverse implications for all three of those critical norms. The resultant tension, at least for now, will constrain administrative agencies' most ambitious potential uses of artificial intelligence.