Celebrating the 75th Anniversary of the APA

Seventy-five years have passed since Democrats and Republicans made a “fierce compromise” to pass the Administrative Procedure Act (APA) during the New Deal era. Republicans and their allies argued that the administrative state would threaten individual rights and the free market, while Democrats and New Deal agencies insisted that giving agencies discretionary authority would help address issues from the Great Depression. After World War II, Congress responded to public concern about administrative power and passed the APA, which President Truman signed into law on June 11, 1946. Under the APA, Congress divides agency action into either “rulemaking,” which encompasses agencies’ forward-looking regulations, or “adjudication,” which covers any action that is not rulemaking. Congress also requires different procedures for different types of rulemaking and adjudication. For example, under the APA, Congress protects individual rights and free markets by establishing notice-and-comment procedures for public participation in rulemaking. It also grants agencies a high level of discretion in employing their expertise. Today, “the APA has assumed quasi-constitutional status” and its importance has grown with the size and power of the administrative state. In a 2020 report, the U.S. Department of Justice estimated that federal regulations cost between $1.75 and $2 trillion per year, even though they provide less transparency and accountability than formal acts by Congress. Citing excessive costs, the Trump Administration pursued an anti-regulatory agenda. Former President Donald J. Trump authorized 14 Congressional Review Act repeals, canceled 130 rules in his first year, and issued a 1-in-2-out executive order mandating that agencies offset costs by identifying two regulations to eliminate for every new regulation proposed. President Joseph R. Biden revoked that order—contributing to a practice of presidents reversing rules and executive orders from the preceding administration. Recognizing the problems with using agency regulations to make lasting changes, experts have demonstrated a growing interest in reforming the APA. Congress has not substantially amended the APA in over 40 years. On February 8, 2016, the American Bar Association recommended nine ways that Congress could update rulemaking provisions in the APA. On December 6, 2019, the Justice Department hosted a summit about modernizing the APA and published a record of the event to inform future APA amendments. The APA continues to be a critical law and valuable source of debate involving questions of due process, government accountability, and separation of powers. In celebration of the 75th Anniversary of the APA, this week’s Saturday Seminar highlights essays published by The Regulatory Review that focus on the APA