John O. McGinnis (Northwestern University - Pritzker School of Law) & Leo Soh (Northwestern University - Pritzker School of Law) have posted Agencies' Unsound Discretion (Administrative Law Review (forthcoming 2025)) on SSRN. Here is the abstract:
Section 5(d), the Administrative Procedure Act’s underutilized declaratory order provision, possesses the power to transform administrative governance. To date, however, agencies have failed to comply with Congress's command to liberally administer section 5(d)'s "sound discretion" standard. That standard mandates binding decisions to resolve regulatory uncertainties. This article asserts that, by reviving this provision, agencies could enhance the rule of law, reduce regulatory unpredictability, and foster economic growth. It also contends that APA originalism requires courts to enforce this mandate more rigorously. The declaratory order harmonizes agency accountability with regulatory efficiency, making it an indispensable tool for modern administrative governance.
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