Federal agencies are increasingly adopting mandatory digital tools that structure how officials evaluate claims and make enforcement decisions, potentially creating binding policy effects without formal rulemaking or public transparency. This shift toward algorithm-driven governance influences not only agency outcomes but also the administrative records reviewed by courts.
How Algorithms Shape Adjudication and Legal Records
An illustrative example is the Social Security Administration’s (SSA) Electronic Claims Analysis Tool (eCAT), a mandatory software used by disability examiners during initial case determinations. Although the underlying five-step evaluation framework is regulatory, eCAT dictates the order of evidence consideration, available options, and the language used to generate official decision explanations. These software-driven design choices constrain adjudicators’ discretion within a fixed reasoning architecture, directly shaping the explanations that become the administrative record for judicial review.
SSA’s own experience reveals how these design choices affect outcomes. For instance, an update to eCAT 9.0 intentionally blocked adjudicators from using Medical-Vocational Rule 204.00 via software configuration rather than by amending the regulation itself. This change effectively altered how the regulatory standard operated across cases without public notice or formal rulemaking.
Algorithmic Constraints as De Facto Rules
Under U.S. administrative law, rules that bind officials across cases typically require public notice and an opportunity for comment. Although formal commands are one trigger, courts have recognized that binding effect may also arise when agencies constrain discretion in practice. Mandatory digital systems that limit permissible reasoning pathways or suppress certain analytical approaches can act as binding rules, even if this effect is embedded in software design rather than written policy.
This problem extends beyond SSA. Immigration and Customs Enforcement (ICE) altered its Risk Classification Assessment system by removing the “release” recommendation option, significantly reducing detainee releases. This substantive policy shift occurred through system reconfiguration without undergoing formal rulemaking, similarly raising legal and transparency questions.
Implications for Judicial Review and Accountability
When algorithms restrict reasoning options within agency decision tools and produce official explanations, they limit what arguments and justifications appear in the administrative record. Courts reviewing decisions may be unaware that certain legally permissible reasoning was excluded by software design, preventing meaningful judicial inquiry. This “invisible policymaking” blurs the line between case-by-case agency discretion and binding rulemaking.
Accountability concerns arise because the constraints are coded before any case review and apply uniformly across all cases, unlike flexible individualized determinations. Furthermore, classifying these systems as procedural tools does not fully address substantive impacts, especially when design choices determine legally relevant outcomes and the content of judicial review records.
Recommendations for Transparency and Rulemaking
Experts argue that agencies should disclose core design features that shape decision pathways, such as gating logic and sequencing constraints, especially when such tools impact benefits, liberty, or other protected interests. When software modifications substantially alter available reasoning paths or outcome distributions, they should be subject to the notice-and-comment rulemaking process. This approach focuses accountability on design features integrated into official records rather than demanding full code transparency or imposing rulemaking on all digital tools.
Why it matters
This emerging governance model, in which software architecture shapes agency reasoning and legal records, challenges traditional administrative law safeguards of transparency and public participation. Without clear rules for algorithm-driven decision-making tools, affected individuals may face decisions containing hidden procedural constraints, limiting their ability to challenge outcomes. Courts may lack the necessary record to ensure fair and lawful agency action. Recognizing when system design functions as binding policy is critical to preserving administrative accountability in an increasingly digital regulatory landscape.
Sources
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