75 Years of the Administrative Procedure Act & What it Means for You
This year marks the 75th anniversary of the Administrative Procedure Act (APA). This “super statute” governs the way administrative agencies develop and issue regulations and allows for oversight of agency actions by federal courts. On the August 6th episode of the FEDtalk podcast, the guests took a brief look at the history of the APA and how the law has evolved over the last 75 years. Finally, the group discussed modern issues in administrative law and how these challenges impact the civil service.
Co-hosts Natalia Castro and Chris Keeven of Shaw Bransford & Roth were joined by Adam White and Paul Verkuil. White is a co-executive director of the C. Boyden Gray Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School. He is also a senior fellow at the American Enterprise Institute. Verkuil is a senior fellow and former president of the Administrative Conference of the United States. He is also President Emeritus of the College of William and Mary.
Verkuil explained why the APA is worth discussing even 75 years later, saying, “The truth is in 1946 when the statute was enacted it resulted in the settlement at that time of a very contentious period about the administrative state that began during the Roosevelt years, prior to World War Two. There was a tension between those that wanted the judicial system to rule and those who preferred to have administrative law be an independent branch overseen at some level by the judicial branch. The APA became what we call a compromise from the hardliners who wanted more direct judicial review and direct action and those who said, ‘lets let the courts have a follow-on role.’”
While the APA attempted to settle many of these issues, tensions have returned as the APA has evolved. For example, the panel discussed how issues like judicial deference to agency interpretations remains a constant debate.
One thing that reignited these debates is the “growth of the administrative state.” The panel discussed the shift agencies have taken away from formal rulemaking – which requires public comments and authorizes judicial review – toward informal rulemaking through memos and policy positions. As a result, administrative agencies can enact rules quickly and efficiently. This has vastly increased agency capacity to grow and act with agility to respond to public concerns. Some view this development as increasing the need for judicial oversight into agency actions.
White discussed the impact this has had on the traditional notions of the branches of government and their power, “Ideally, Congress would make board laws looking forward. The President, the executive, or administrators would enforce the laws in the present, here and now, making prudential judgments about the law. And the courts would look backwards. They would look at the facts that happened, the law that was already written, and they would decide cases.”
White argued the growth of the administrative state has warped this system. He said, “It seems to me now that everyone has shifted over one seat. You have the president and the executive branch and agencies making broad rules looking forward. You have the courts summoned to jump into the here and now and make a lot of prudential judgments over preliminary injunction that would block programs in their tracks. And Congress, while it does legislative sometimes and passes appropriations bills, it mostly looks backward and has oversight hearings complaining about what has happened or praising what has happened.”
White explained that while all these features are necessary in government, the question becomes who should really be doing what.
Finally, the panel explained how these legal issues impact civil servants. As the Supreme Court narrows the applicability of “for-cause” protections, Verkuil highlighted that this may impact the independence of civil servants.
“Go back to the dichotomy between facts and policy. Civil servants make decisions, and they have integrity. That is part of the decision process. They think hard about something, they analyze it, and they have integrity. In order to preserve that integrity, you need some protections for the civil servants who act – kind of tenure process. There needs to be some room to preserve their independence,” he explained.
Listen to the full discussion on the APA, and what it means for agency officials and civil servants, on the Federal News Network app or your favorite podcasting platform.
You can stream the show online anytime via the Federal News Network app and listen to the FEDtalk podcast on PodcastOne and Apple Podcasts.
FEDtalk is a live talk show produced by Shaw Bransford & Roth P.C., a federal employment law firm. Bringing you the insider’s perspective from leaders in the federal community since 1993.
FEDtalk is sponsored by the Federal Long Term Care Insurance Program (FLTCIP). The FLTCIP is sponsored by the U.S. Office of Personnel Management, insured by John Hancock Life & Health Insurance Company, under a group long term care insurance policy, and administered by Long Term Care Partners, LLC (doing business as FedPoint).
