The US Department of Justice (DOJ) outlined the need for Congress to update and improve the Administrative Procedure Act (APA) in a report Tuesday.
The APA governs the procedures that agencies must follow when they regulate private parties. It has remained largely unchanged since its enactment in 1946. The DOJ called for an update to the APA because it “no longer reflects how the regulatory process actually works.”
The report stated that, at the time that the APA was enacted, the creators of the APA could not have foreseen the “exponential growth in the administrative state.” The size, number and activities of administrative agencies have grown so much that regulation has become the “principal form of lawmaking” in the US. From 1995 to 2017, agencies issued more than 92,000 rules. During that time, Congress only enacted 4,400 new laws.
The report, which was based on a summit held by the DOJ in December 2019, discusses how the APA might be improved and how improvements to agencies’ regulatory processes could modernize the APA. The experts referred to in the report suggested a variety of methods to modernize the APA, including placing more of a burden on Congress to legislate instead of relying upon agencies to create rules.
As written in the report:
Put simply, the time has come to modernize the APA. Legislative reform of the APA is needed to meet the realities of today’s economy and regulatory state. And, perhaps as importantly, it is needed to restore constitutional norms.