This commentary was originally published by The Regulatory Review.
The Arkansas Department of Health Services hired a software company in 2016 to build an algorithm to automate the process of assessing disabled patients’ needs. The program failed spectacularly. For example, the algorithm reduced an amputee’s level of home care because the patient had no “foot problems.” Overall, the program negatively affected nearly half of Arkansas Medicaid recipients.
Artificial intelligence (AI) is now used widely in the federal government. According to the U.S. Government Accountability Office, use cases of AI in the federal government doubled — and for generative AI, increased nine-fold — from 2023 to 2024. With this growing use of AI, the risk of systematic errors with potentially harmful consequences, such as those in Arkansas, may increase. Similar issues have already occurred at the state level in Idaho, Texas, Michigan, and Wisconsin, as well as at the federal level at the Department of Homeland Security.
The Trump administration has reportedly signaled its intent to introduce AI into the rulemaking process. It is unclear whether and how agencies might rely on AI-generated information to inform regulatory decisions. But this development raises key administrative law questions — particularly as horror stories like those in Arkansas become more common.
Legal scholars have long recognized the challenges judges face when enforcing the Administrative Procedure Act’s bar on “arbitrary and capricious” decision-making — which requires that a government agency engage in reasoned decision-making — but these scholars have assumed that the decisionmakers under review are humans. Issues raised by AI may exceed the limits of existing administrative law doctrines. This creates a legal problem under the Administrative Procedure Act, which compels courts to hold unlawful and set aside agency action found to be arbitrary and capricious.
How can judges properly conduct judicial review of agencies’ regulatory decision-making that relies on AI? Observers cannot always determine how an AI model made its decision — the so-called “black box” nature of AI. Even when users prompt an AI model to explain its rationale, there is no guarantee that the reason the model produces is the actual reason the model used. Under the Administrative Procedure Act, judges must set aside arbitrary and capricious decision-making, but the black box issue can make it difficult, if not impossible, for reviewing judges to assess the reasonableness of decisions made using AI. This raises similar concerns to the problem of pretext that administrative law already recognizes, since both implicate the distinction between the stated and actual reason for a decision.
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Arvind Salem | June 23, 2026
Artificial intelligence (AI) is now used widely in the federal government. According to the U.S. Government Accountability Office, use cases of AI in the federal government doubled — and for generative AI, increased nine-fold — from 2023 to 2024. With this growing use of AI, the risk of systematic errors with potentially harmful consequences may increase.
James Goodwin | June 10, 2026
For the pro-democracy crowd, the arrival of June each year brings a palpable sense of dread. We are keenly aware that it marks the end of the U.S. Supreme Court’s annual term, when the most controversial decisions are handed down. And each year, we are left to anticipate how exactly our oligarchs in black robes […]
Sophie Loeb | June 9, 2026
Across the country, legislators are figuring out how to regulate the worst harms from data centers. In North Carolina, the latest bill to do so is Senate Bill 730. Unfortunately, SB 730 is not a step forward in protecting North Carolinians from the harms of data centers. Rather, it is a step sideways, evading needed regulations.
Arvind Salem, James Goodwin | June 8, 2026
The growing use of AI for such complex governance functions as regulatory decision-making is attracting attention. The practice risks putting two existing bodies of public law—those governing the rulemaking process and procurement, respectively—on a collision course: in particular, rulemaking’s emphasis on transparency and procurement’s emphasis on quick commercial transactions that often do not include robust transparency audits. The impetus for this potential clash is that the architecture of many of the AI systems that the federal government employs are developed by private contractors.
Daniel Farber | June 1, 2026
A proposed new rule would replace merit-based funding of science with a heavily politicized process. It would also deprive scientists of the ability to rely on finding for long-term projects. This proposal has no real legal basis. It is likely to undermine American science, giving a boost to China's efforts to take over global scientific leadership.
Alejandro Camacho, Robert L. Glicksman | May 21, 2026
This excerpt is from a commentary originally published in The Conversation. In recent years, at least two dozen local and state governments have sued petroleum companies to recover the billions in costs they have incurred responding to and rebuilding after flooding, storms and wildfires – all of which have been worsened by changes to the […]
Daniel Farber | May 15, 2026
EPA has said it would no longer try to quantify the harms done by the two most serious, widespread air pollutants. Given that these are the most fully understood of all environmental impacts, it’s not clear what future regulations, if any, might still be subject to cost-benefit analysis. This didn’t come out of the blue. Rather, it is the culmination of a series of steps that began when President Donald Trump first took office in 2017.
Federico Holm | May 12, 2026
It is tempting to think that the threat of the current Congress abusing the Congressional Review Act (CRA) is over, now that the deadline to revisit rules implemented during the previous Congress’s session—provided by the CRA’s unique “lookback provision”—has formally passed. But that would be a mistake, as conservative lawmakers have found novel ways to target agency actions from previous administrations.
Steph Tai | May 7, 2026
The question of which court should hear a case isn’t always as easy as it might seem — and the answer can sometimes make a difference in the potential outcome. For instance, in 2013, the government of Plaquemines Parish, Louisiana, decided to sue several oil companies for violating a 1978 state law that required a state permit for oil production along the Louisiana coast.