Last December, the U.S. Department of Justice held a Summit on Modernizing the Administrative Procedure Act. I had the privilege of participating on one of the panels. Today the Justice Department issued a 129-page report from the summit, which includes remarks from a number of Justice Department officials, the transcript from the panels, and various Executive Orders and Justice Department guidance on the subject. The report is available here.
Here are a few paragraphs from the report’s foreword, authored by Deputy Attorney General Jeffrey A. Rosen:
On December 6, 2019, the Department of Justice hosted a summit entitled Modernizing the Administrative Procedure Act. The summit brought together leading practitioners, scholars, and policymakers to discuss how the Administrative Procedure Act (APA), originally enacted in 1946 and largely unchanged since then, should be reformed to better serve the modern regulatory state. The Department of Justice is publishing this record of the summit in the hope that the ideas and insights discussed there will encourage and inform much needed action by Congress to update and improve the APA.
This Report draws inspiration from the significant role the Department of Justice played in shaping the original APA. The APA emerged after more than a decade of debate over administrative reform, driven largely by the massive growth of the administrative state during the New Deal. That debate involved fundamental questions of governance: Could an
administrative state that gave agencies executive, legislative, and judicial power, and entrusted their personnel with enormous discretion, be reconciled with the separation of powers, due process, and the rule of law? And, if so, how? A then-controversial report from the Special Committee on Administrative Law of American Bar Association, authored by Harvard Law School Dean Roscoe Pound, gives a sense of how participants in the debate viewed its stakes. It warned that underlying the growth of the administrative state is the idea of “administrative absolutism,” in which “a highly centralized administration set up under complete control of the executive” is “relieved of judicial review and make[s] its own rules,” without regard for norms of due process or the rule of law.
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This Report aims to disseminate the many good ideas for modernizing the APA that were discussed at the Department of Justice’s summit. In the 1940s, the Department of Justice harnessed its experience with administrative law to play a vital role in shaping what became the APA. Now, as then, the Department is eager to work with leaders in Congress to reform the law governing the regulatory process to advance the interests of the American public in economic opportunity, policy accountability, due process, transparency, and the rule of law.