Letter for the Record by the New Civil Liberties Alliance in Connection with the Subcommittee on Antitrust, Commercial, and Administrative Law Hearing, “The Administrative Procedure Act at 75: Ensuring the Rulemaking Process Is Transparent, Accountable, and Effective”

Since its adoption, it has been understood that the Administrative Procedure Act (APA) serves four basic purposes: (1) it “require[s] agencies to keep the public currently informed of their organization, procedures and rules”; (2) it “provide[s] for public participation in the rule making process”; (3) it “prescribe[s] uniform standards for the conduct of formal rule making … and adjudicatory proceedings…, i.e., proceedings which are required by statute to be made on the record after opportunity for agency hearing”; and, (4) it “restate[s] the law of judicial review.” Stated another way, the APA’s purpose “is to regulate the procedures used by agencies, and in particular the procedures by which agencies issue orders and promulgate rules … Crucially, the APA … makes these limitations into rights enforceable by those injured by agency action.” However, despite the APA’s promise, it often falls short of its laudable goals and in many ways has incentivized evasion of the law through administrative lawmaking. These shortcomings ultimately harm regulated individuals and entities and impermissibly encroach on their Constitutional rights.

It is easy to simply consider the success or failure of the APA through a review of the “notice and comment” rulemaking process. However, this ignores the fact that the APA has—intentionally or not—created numerous modes of administrative lawmaking, each with its own unique evasion of the law and encroachment on civil liberties. And, what occurs after the rulemaking process is completed, i.e., enforcement, is as important as how the rulemaking process occurs.

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