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Is It Time to Update the Administrative Procedure Act?

Has the Administrative Procedure Act (APA) of 1946 remained static? Does it need to be updated to be more effective in modern times? Professor Christopher Walker discusses whether the APA has been previously amended and how it was done. He outlines the Regulatory Accountability Act, a current bipartisan proposal in Congress to modernize the APA, and why it is controversial. https://youtube.com/watch?v=WGrcnbe38R0


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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