Efforts to modernize the APA should be approached with caution.
The U.S. Administrative Procedure Act (APA) was enacted 76 years ago. It is hard to believe in these polarized times that the APA passed without opposition in 1946. But this fact obscures the long period of negotiations and controversies that attended its drafting even in a period when the Democratic Party controlled all the levers of government.
Maybe the nation’s success in World War II had tamped down the earlier fears of big government, but there was a general consensus in 1946 that the APA was a good compromise that gave the people and the courts sufficient control over the executive agencies that had proliferated during the New Deal. Justice Robert Jackson famously described the Act four years later in the case of Wang Yang Sung v. McGrath as representing “a long period of study and strife; it settles long continued and hard fought contentions, and enacts a formula upon which opposing social and political forces have come to rest” and “contains many compromises and generalities, and no doubt, some ambiguities.”
Still, given its disputed origins in the 1930s, the APA has shown remarkable staying power.
Originally, the APA had 12 sections. In 1966, its provisions were codified into Title 5 of the U.S. Code—sections 551 to 559, sections 701 to 706, and some other scattered sections relating to administrative law judges. Those provisions have only been amended in any substantive way five or six times, and most of the amendments have been relatively peripheral.
The U.S. APA really only covers four primary subjects: administrative adjudication; administrative rulemaking; judicial review of agency action; and the availability of government information. Of course, this masks the complexity that attends those four subjects. In terms of administrative procedure, the APA divides agency actions into two categories, rulemaking and adjudication, and those are each, in effect, subdivided into formal and informal versions. The judicial review provisions cover the rules for accessing the federal courts—reviewability, standing, ripeness, finality, and exhaustion of remedies—and also the scope-of-review standards that the courts should use in reviewing different types of agency actions.
The APA in the United States is often characterized as a “framework” statute—the type of statute that answers some types of administrative procedure questions specifically, but also intentionally leaves gaps for agencies and courts to fill in with what has been called the development of administrative common law. In 2004, for example, Bruce Ackerman celebrated the APA as “the most notable framework statute of the twentieth century.” Ackerman noted that although “the Founders did not foresee the rise of the bureaucratic state…the APA is the product of constitutional thought, and the courts have given quasi-constitutional status to its provisions.” He observed that “the framework provided by the APA has successfully imposed fundamental constraints on bureaucratic government in the name of democracy and the rule of law.”
More recently, Kathryn Kovacs has similarly called the APA a “superstatute,” borrowing the term from William Eskridge and John Ferejohn, because it emerged from a long period of deliberation, altered regulatory baselines, passed the test of time, and affected the law broadly, although she is more critical of the courts’ departures from the text. In an article on the APA’s 75th anniversary, Christopher Walker takes a similarly skeptical view of these departures. I think it interesting that Kovacs, a liberal, and Walker, a conservative, have the same skeptical take on administrative common law and agree that it would be good if Congress took steps to update the Act. But one wonders if they would so readily agree on how Congress should do so.
When the topic of proposals to “update,” “reform,” or “modernize” the APA comes up, I am always tempted to quote the 19th century British commentator who reportedly quipped, “Reform, Sir, reform? Don’t talk to me of reform; things are bad enough as they are!”
But I do have some other observations. First of all, although the APA is still the centerpiece and it has governed us well for 75 years, Congress has nevertheless felt the need to supplement it by enacting numerous other cross-cutting procedural laws, such as the National Environmental Policy Act, the Federal Advisory Committee Act, Government in the Sunshine Act, Paperwork Reduction Act, Regulatory Flexibility Act, Unfunded Mandates Reform Act, Congressional Review Act, Negotiated Rulemaking Act, Administrative Dispute Resolution Act, and others. Experts could debate the merits of these statutes, but they have undeniably taken some of the steam out of the APA reform movement.
Of course, the courts, through administrative common law, and Presidents, through executive orders—especially the ones that created Office of Management and Budget review of executive agency rules—have also added more procedural and analytical requirements, primarily to agency rulemaking. Those actions cut both ways, however, with some commentators saying that these changes have appropriately improved the APA framework sufficiently, and others saying that these changes lack the needed imprimatur of Congress.
But there are still calls for reform. In the last decade, conservative critics of regulation, even those who have not sought to “deconstruct the administrative state” like the former President, have called for more constraints on agency regulatory actions. This push has led to bills such as the Regulatory Accountability Act, which passed the Republican-controlled House several times and would have substituted for the current APA Section 553, a new version that was approximately ten times longer, with dozens of new procedural and analytical requirements added to the agency rulemaking process.
Another bill that passed the House at that time, the Regulations in Need of Scrutiny Act (REINS Act), would have required both houses of Congress to vote affirmatively to approve any major regulation. That requirement would essentially stifle regulations any time there was split party control of the White House and one house of Congress. Another bill that passed the House, grandiosely entitled the Separation of Powers Restoration Act, would have required that courts reviewing agency action review all legal questions de novo—thereby disallowing any deference to agency expertise. The Senate did not take up these bills, mainly because the Democrats had the filibuster as a blocking mechanism.
Granted, there are also some proposals coming from the current progressive wing of the House, including a bill called the Stop Corporate Capture Act. Among its provisions are some amendments to the APA that would codify Chevron, require “social equity assessments” in rulemaking, require written explanations when an agency withdraws a rule that it submitted to the Office of Management and Budget, and require commenters to disclose the funding of non-peer reviewed studies or research mentioned in their comments.
In between these bills, which are not likely to be enacted as long as the filibuster exists, are some middle ground or “consensus” proposals, such as the menu of nine suggestions proposed by the American Bar Association (ABA) to modify the APA rulemaking process. These proposals would mainly codify some of the courts’ common law decisions or the kinds of consensus-based recommendations made by the Administrative Conference of the United States (ACUS). Some of these proposals have made it into versions of the Regulatory Accountability Act, passed by the Republican-controlled House. But they were overshadowed by the more radical changes in the bill, so they could not get any traction.
Could these proposals be separated into a stand-alone bill that might be able to pass? Theoretically yes, but apparently and unfortunately, there is not enough of a political payoff for simply supporting good government or “better regulation” for that to happen.
So where does that leave American administrative law? Nervously awaiting the next two elections, I suppose. But for the purpose of reflecting on the project of administrative procedure reform more generally, what can be said about possible amendments to the APA?
Among the panelists addressing the U.S. APA at the recent workshop on comparative administrative law sponsored by the Penn Program on Regulation, neither Michael Herz nor I have supported any specific amendments, other than perhaps signing on to some of the suggestions from the ABA and ACUS. Emily Bremer has done some marvelous research into the legislative history of the APA and suggested that our collective long-held view that the APA creates two alternative types of adjudication—formal and informal—is incorrect. But that insight, if true, does not point to an amendment of the APA, just a different reading of the current text.
That leaves Paul Verkuil who, after a lifetime of studying the APA, has concluded that even if administrative procedure in practice does not always conform to the APA’s text, the APA “has symbolic value far exceeding its terms.” Verkuil notes that “the question now is whether those opposing social and political forces are tired of resting and have become restive.”
But back in 1978, Verkuil suggested that the APA should be amended to create what he called a unitary administrative procedure that would apply to what is considered informal adjudication. It would combine the written comment process of informal rulemaking with oral hearings and cross-examination on specific issues as the agency so determines. This was an early and innovative attempt to fill in the APA’s blank box of informal adjudication procedures but, as with later attempts, it died on the vine.
My own view mirrors that of Ronald Levin in a recent article. Levin has been critical of proposals such as the Regulatory Accountability Act and the REINS Act, but he did help shepherd the ABA’s consensus recommendations for amending the APA through the ABA. In his piece, he catalogs the many ways that court decisions have “creatively interpreted the APA’s provisions on rulemaking, adjudication, and judicial review.” He also defends them as “pragmatic judicial efforts to keep up with the evolving needs of the regulatory state, especially in light of Congress’s persistent failure to take charge of updating the Act on its own.” He adds that, “at this point, a large-scale effort to undo these judicial innovations would be disruptive.”
I agree, and to anyone who finds the argument appealing that Congress should be lobbied to modernize the APA, I would ask: Do you think Congress would agree to limit itself to the ABA’s consensus proposals? Do you really think that the core of the APA as it stands now would survive going through the legislative wringer?
To close with an analogy, we all know that the U.S. Constitution has some serious flaws, but how comfortable would we be with gambling that a new Constitutional Convention would come up with a better one?
This essay is part of a six-part series entitled, Administrative Law in Comparative Perspective.