Is it Time to Update the Administrative Procedure Act? [No. 86]
Articles,  Blog

Is it Time to Update the Administrative Procedure Act? [No. 86]

As the New Deal rose, and more and more federal
agencies began to make laws and regulate us on a daily basis, members of Congress on both
sides of the aisle struck a compromise to pass the Administrative Procedure Act to provide
for more process, more transparency, to make federal agencies more democratically legitimate
and responsive. And so when we think about the Administrative
Procedure Act, it’s this grand compromise, a quasi-constitution that controls how the
federal administrative state works today. Since the Administrative Procedure Act was
enacted by Congress in 1946, Westlaw tells us that it’s been amended 16 times in over
70 years. In other words, we have barely touched the
rules, the ground rules for the federal administrative state. At least Congress hasn’t.
That doesn’t mean that the Administrative Procedure Act has remained constant. Instead of Congress modernizing and updating
the Administrative Procedure Act, the federal courts have done that through a number of
important decisions. Currently, in Congress, there’s legislation
pending to modernize the Administrative Procedure Act. It’s bipartisan legislation sponsored by two
Democrats and two Republicans in the Senate, and it’s called the Regulatory Accountability
Act. Most of the Regulatory Accountability Act
puts forward consensus-driven bipartisan solutions for modernizing the Administrative Procedure
Act. For instance, it would require agencies to
engage in rigorous economic analysis of rulemaking. It would require agencies to do retrospective
review, which is to look back on it’s rules that it promulgated before and make sure that
they still make sense, that they should still be there. So it has a number of these bipartisan consensus-driven
recommendations to make the Administrative Procedure Act better, to make it work better
with the modern realities of the regulatory state. The most controversial part of the Regulatory
Accountability Act is that it requires more process whenever a federal agency is going
to be engaging in rulemaking that’s high stakes. In other words, as the legislations qualifies
that as rules that cost 100 million dollars or one billion dollars. The controversy from those in the progressive
side, is that this makes rulemaking too hard, that it leads to what we call ossification. . .
On the other hand, it seems kind of odd that federal agencies are promulgating rules that
cost a billion dollars. The framers would have been shocked to hear
that it’s federal agencies doing this and not Congress. So we’re at a stage in our modern administrative
state, where the debate isn’t about Congress passing legislation that addresses the pressing
issues that we have today, but whether federal agencies have to go through certain processes
before they can impose a cost of a billion dollars on the economy.

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