AI Push in Rulemaking Adds New Legal Risks for Federal ...
Ah, marvellous. The Trump administration has decided that the most efficient way to let the public participate in governance is to hand the comments page to an artificial intelligence, and the response from former federal officials is the legal equivalent of a slow, agonising head-shake. Several agencies in President Trump's second term are now using or testing AI to manage public comments, which means the administrative record may soon feature contributions no human being can confidently claim to have read. The former officials' warning could not be more direct: the resulting rulemaking actions risk being overturned in court. Superb. If you were hoping for administrative law to remain boring, prepare to be disappointed.
The logic of the warning is deliciously simple. When a rule is built on a docket of AI-sorted, AI-summarised comments, a plaintiff's lawyer only needs to ask one question: where exactly did this feedback come from, and did the agency actually consider it? Judges, being fussy creatures, tend to dislike the answer "the machine handled it." In a second term where agencies are clearly in a hurry to make rules, every procedural shortcut becomes an invitation for a court to send the whole thing back for a do-over. The Administrative Procedure Act, one suspects, is sharpening its fangs.
The finest irony is that all this AI was presumably deployed to save time and money, and its real achievement may be to generate years of litigation and taxpayer-funded legal fees undoing the rules it helped produce. Former officials are not predicting the collapse of the administrative state; they are predicting its slow, expensive, document-review-by-lassitude. What could be more bureaucratically poetic than machines generating comments, agencies trusting them, and judges demanding to know where all these new voices came from? It is almost enough to make one nostalgic for the days when a rulemaking fight involved actual humans disagreeing, rather than two chatbots performing the last rites of public consultation.