Notice & Comment

In Bipartisan Reform of the APA, Is There “Fertile Ground Here to Actually Get Something Done”?

Sen. Heitkamp, with Sen. Lankford on Sept. 8, 2016As Chris noted last night, Senators Portman and Heitkamp introduced legislation to significantly reform and modernize the Administrative Procedure Act of 1946. There is much to be written about this version of the “Regulatory AccountabilityAct,” including its provision for replacing Auer deference with a Skidmore

While regulatory reform tends to be construed as a Republican or conservative attack on administrative agencies per se, Senator Heitkamp is a Democrat, and a progressive one at that. So she brings a particularly interesting perspective to these debates, as exemplified by her remarks last year at the Federalist Society’s annual Executive Branch Review Conference.

She also exemplified this last autumn, at a hearing held by the subcommittee chaired by Senator Lankford, where she is the ranking member. I had the pleasure and honor of testifying (the subject was, specifically, proposals to reform agency “independence”), and Sen. Heitkamp took a moment near the end to describe the current opportunity for bipartisan reform:

When we can sit down, Mr. White, and you and I nod our heads in total agreement about kind of where we are, recognizing that we may not agree on everything as a matter of politics, we know that we have some fertile ground here to actually get something done. But we are not going to get it done if we have the constant sniping at this, as this is just a way to shut down this agency or shut down that agency or restrict that agency.

We are not trying to shut down, restrict, or do any of that. What we are trying to do is say, justify to us the decision that you made and the analysis that you did.

… It should not be controversial, because I just keep asking my colleagues, you could have a president that is not a Democrat. What oversight, what accountability do you want for the decisions that are going to be made in that case?

I’ve kept those words in mind ever since. Needless to say, her assessment of the political situation proved prescient, given the electoral events that followed. But I found her general outlook to be a wonderful breath of fresh air in the current debates. It will be interesting to see whether her optimistic (or at least hopeful) view of compromise and reform will be shared by colleagues on both sides of the political aisle, and in the academic and policy debates that surround Congress’s deliberations. The fact that this legislation was introduced or sponsored by two Democrats (Heitkamp and Manchin) and two Republicans (Lankford and Hatch) is a long first step in that direction.

Of course I doubt that the 115th Congress will repeat the 79th Congress’s feat of passing the original APA unanimously. But if today’s Senators and Representatives, and those of who who think and write about administrative law, approach the task with the same spirit of realistic reform and compromise as our predecessors 70 years ago, then there will be reason for hope.

Adam J. White is a research fellow at the Hoover Institution, and an adjunct professor at George Mason University’s Antonin Scalia Law School.

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