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Growth of the Administrative State and the Administrative Procedure Act Compromise

How does the Administrative Procedure Act (APA) of 1946 reflect a compromise? Professor Christopher Walker discusses the history and current state of administrative agencies. He gives an overview of the balance the APA sought to strike between fair and transparent procedures, on one hand, and the danger of ossification (stale regulations that are not updated with changing times). https://youtube.com/watch?v=RRCq-gwjuNA


In the New Deal, Congress enacted numerous statues, creating new agencies, giving agencies power to address numerous issues that affect us on a daily basis. We saw similar action by Congress in the 1970s with respect to health and safety. Think the Clean Air Act, the Clean Water Act. Again, Congress identified these issues, passed legislation, gave power even more power to federal agencies to address those issues. The growth and the growth of the modern administrative state can originally be traced back to the Congress passing laws, giving more power to federal agencies, growing federal power in comparison to states and to individuals. More recently, however, the growth of the administrative state has happened because Congress does not act. It's because Congress does not pass laws. We have this enormous administrative state controlled by the president, and so for the president to respond uh to public opinion and to the president's own agenda, the president's had to use these stale, older laws to address new issues. Now part of the problem with this is that Congress is quite polarized. Ah we don't have a compromising Congress like we did before. Uh we have a Congress that is not passing laws in a on a regular basis, and that allows for federal agencies' power to grow. The Administrative Procedure Act attempted to strike a compromise uh for administrative action. On the one hand, uh Congress wanted to require agencies to go through sufficient process. They wanted them to use procedures that were fair, that were transparent, that sought public input uh to account for the democratic deficit agencies have. On the other hand, they didn't want to require too much process because too much process would lead to what we call ossification. If it's too hard for an agency to regulate, the agency won't regulate and we'll be stuck with regulations that are outdated, that are stale, uh that can't be updated to changing times. And so Congress in 1946 struck a balance. Tried to provide for enough process so there would be transparency and public input and fairness, but not too much process that the agency would be paralyzed, it wouldn't be able to act, it would be ossified. Uh and that's one of the important balances struck by the original enactors of the Administrative Procedure Act.

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