Although the Administrative Procedure Act (APA) in theory regulates government policymaking, the agency that is both among the oldest and, as the financial crisis has revealed, one of the most important, does not play by its rules. The Treasury Department is rarely sued for its administrative procedure, makes fewer rules than do agencies that follow the APA more closely, and acts as if it is generally less bound by the nuances of process than do its peers.
In the Article, I examine the alternative administrative procedure that applies to the Treasury Department and illustrate the ways in which it does things differently. In some ways, the Department’s absence from the usual suspects of administrative oversight, including the Office of Management and Budget, the D.C. Circuit, and the Federal Register, suggest that Treasury is essentially acting as an unsupervised agency; many observers have concluded that the Treasury Department’s response to the financial crisis amounted to an abandonment of the usual safeguards we expect in the modern administrative state. But a closer examination indicates that Treasury simply operates under a different model, one informed by its form, its remit, and its tasks—but not, at least not much, by ordinary administrative procedure. Its constraints come more from Congress, from internal controls, and from the large, but understudied, private bar that interprets what it is doing, than from notice, comment, rulemaking, and litigation