“Who are you?” Grey asks.
“I’m Administrative Agency.” Says Agency.
“You seem very attractive to me for some reason.”
“It’s because I allow for expertise.” Nods Agency. “I’m filled with people who are experts in something or another. I also allow Congress to punt on tough issues that require continual oversight.”
“That is attractive to me. I’d like to bind you.”
“You can’t bind me.”
“Congress can,” confirms the Agency. “Congress can create a statute that would bind me to do or not do certain things in a certain way. I can be statutorily bound.”
“Sounds dirty.” Says Grey.
“Politics usually are,” says Agency. “It also depends where I am. If I’m living in the Executive branch, I can also be bound by executive order.”
“Are there any other ways you can be bound?” asks Grey suggestively.
“I can bind myself,” says Agency.
“I can bind myself,” Agency repeats, “I can promulgate a rule or engage in formal adjudication that might yield a result that binds me in the future. But not for long. A lot of agencies change their mind about binding themselves. For example, the NLRB habitually changes positions on certain things.”
“This isn’t exactly what I had in mind,” Grey says disappointedly, “ever since I saw you trip outside my office in an awkward way, my low self-esteem told me that to have a sadomasochistic relationship with you.”
“Try formal adjudication.” Agency says. “That’s pretty S&M, particularly when historically formal rulemaking required extensive hearings. The most famous example was an FDA rulemaking about how many peanuts should be required in peanut butter. Over 7,000 pages of testimony and exhibits later, the Agency came out with a rule saying 90% peanuts. That’s not even as painful as formal adjudication, because in formal rulemaking you can proceed on papers if no party is prejudiced.”
“That’s just nuts!” says Grey. “Do you do anything else crazy?”
“Everything I do is typically public.” Agency says.
“Oh, an exhibitionist, eh?”
“Well, everyone knows what I’m doing because it is in the Federal Register, typically. If I’m engaged in informal rulemaking, interested persons will comment and I’ll have to think about what they suggest and maybe even do it if it makes sense to me.”
“Wow, there are voyeurs? I had no idea that administrative law could be so….hot.”
“There are safewords, too!” adds Agency.
“Really? Like what?” Grey asks in an excited tone.
“Chevron. I get deference if I interpret an ambiguous organic statute in a reasonable way. But it is a two-part safeword, so sometimes my pleas for Chevron get ignored. But even then, another safeword sometimes works.”
“Oh, ORGANIC statute. I thought you said something else,” Grey says disappointedly. “What safeword is that?”
“Skidmore. I might get higher levels of deference under Skidmore. It depends. But as safewords go, it isn’t all that safe.”
“What else should I know about you?”
“Sometimes if Congress doesn’t like what I’m doing, it will humiliate me.” Agency says, head bowed.
“Public humiliation, eh? How do they do that?”
“Hearings. I have to listen to speeches then respond to questions.”
“I don’t think I can be with you,” said Grey. “You’re very weird. Shouldn’t we have some characterization at some point?”
“No. There’s nothing like that in the original which we are parodying,” Agency says.
“What happens at the end of the book anyway?”
“I think they walk away from each other.”
“Like Congress and the ICC?” Agency asks.
“You know, this conversation can’t get any hotter. You can be bound, you do everything in public, people comment on what you are doing, and you are degraded on multiple levels. I don’t understand why people need to read mommy porn when they have administrative law.” Grey conceded.
“Most people think Administrative law is black & white, but really it’s….” Agency started.
“Shades of grey?” Grey finished.
“No, I was thinking really it is more complicated than that.”
Still, it didn’t work out between Grey and Agency. He was only into S&M, and Agency was into the APA. The acronyms alone were unmanageable. Agency, upon returning home, began to sob uncontrollably. This is grief, she said. As she looked again at the paper in her hands, she started crying again.
“Reversed and remanded by the D.C. Circuit.” She sobbed. “I HATE rejection.”