Notice & Comment

My Preliminary Take on the Heitkamp-Portman Regulatory Accountability Act

As I noted last week, Senators Heitkamp and Portman, joined by Senators Hatch and Manchin, just introduced the Regulatory Accountability Act of 2017. Portman’s press release is here, and the full text of the bill is available here (you can also subscribe there for alerts on the legislation). My co-blogger Adam White had a thoughtful post last week on the bipartisan nature of this legislation.

Now that my Senate academic fellowship has concluded, I plan on blogging throughout the summer on regulatory reform in Congress, with an initial series of posts on the Regulatory Accountability Act. In fact, I just posted to SSRN an early draft of an essay entitled Modernizing the Administrative Procedure Act, which provides my more extensive take on the legislation and will be published in the Administrative Law Review later this year.* This is still my preliminary take, and it will no doubt be refined in the coming weeks as I blog and think more about the legislation. But here’s my bottom line from conclusion:

We have seen extensive changes in the modern administrative state since Congress enacted the APA in 1946, including the spread of administrative common law that has reshaped the contours of the APA. Yet Congress has taken little action, having amended the APA only sixteen times—not once since 1996 with the last substantial amendment before that occurring over forty years ago in 1976.

The current political climate seems ideal for much-needed comprehensive, bipartisan legislation to modernize the APA. The ABA’s 2016 consensus-driven recommendations are a critical starting point for any such reform. And the Heitkamp–Portman Regulatory Accountability Act of 2017 wisely incorporates most of the ABA’s recommendations as well as a number of other common-sense reforms. Although reasonable minds may disagree as to some of its provisions, the Regulatory Accountability Act is the type of thoughtful, bipartisan legislation needed to modernize the APA. It deserves serious consideration and careful examination. If enacted, it would certainly constitute the most significant reform of the APA since that “fierce compromise” was enacted in 1946.

The current draft of my essay is available here. As I note in the introduction, to date the Center for Progressive Reform has provided the most thoughtful and comprehensive critique of the Regulatory Accountability Act. This should come as no surprise as Professors Thomas McGarity, Sidney Shapiro, and Rena Steinzor have been working with CPR on this project. You can access their full analysis and summary here.


* As I disclose in the star footnote to the essay, I am a Public Member of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section of Administrative Law and Regulatory Practice. These organizations have recommended many of the proposals discussed in the essay. Similarly, I just finished a semester-long academic fellowship in the Senate (for Senator Hatch), during which time I worked on, among other things, various regulatory reform legislation. The views I express in the essay and in this RegReform Series are, of course, just my own.

This post is part of the Regulatory Reform in Congress Series, which highlights and analyzes legislative proposals to reform the federal regulatory state. All posts in this RegReform Series can be found here.

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