This essay was authored by ACUS Senior Fellow and former Chairman Paul Verkuil. It is the fifth part of a series, ACUS and the APA: Celebrating 75 Years of the Administrative Procedure Act, in which members of the ACUS community reflect on the agency’s connection to the foundational statute of federal administrative law.
The views expressed in this essay are those of the author and do not necessarily represent the views of ACUS or the federal government.
How appropriate it is that the Administrative Procedure Act (APA) and ACUS should share birthday celebrations since they are connected in important ways. After the APA was enacted on June 11, 1946, with the purpose of unifying the procedures applicable to federal agencies, there was still concern about how best to oversee the procedural obligations of the agencies. President Kennedy responded on April 13, 1961, with Executive Order 10934, establishing ACUS. (ACUS was authorized by statute three years later.) Thus were these twin pillars of the administrative state given life and they remain connected in significant ways to this day.
James Landis, in his 1960 Report on Regulatory Agencies to President-Elect Kennedy, emphasized that the Conference “promises more to the improvement of administrative procedures and practices and the systematization of the federal regulatory agencies than anything presently on the horizon.” As a former regulatory commissioner, Landis understood politically that the agency oversight function should be taken from the Department of Justice, and given to an independent agency, to facilitate coordination and cooperation and present “no danger of treading on the toes of any of the agencies.”
Having an oversight agency that contained members of the agencies went a long way toward achieving this goal. That judgment was a wise one since, over the years, the Conference’s recommendations, many of which relate directly to the APA, have benefitted from the insights of its agency members—although we may have stepped on a few agency toes along the way.
Betty Jo Christian, in The Enduring Value of ACUS, reminds us of the importance of our first Chairman, Jerre Williams, who was her professor at Texas Law. Jerre set up the means of connecting with Conference members, including she notes the mingling provided by our famous receptions, which hopefully will return post-COVID. Betty Jo started as the ACUS member from the Interstate Commerce Commission and continued service for many years as a distinguished practitioner and wise head.
Michael Asimow, in The Last Frontier, documents his by now famous tripartite taxonomy of Type A, B and C adjudications, showing how the APA provides (and omits) coverage of them. Michael is one of ACUS’s legendary consultants, who could think clearly, like the tax professor he also is, in categories, sections, and clusters.
Jon Siegel has written about what he believes to be perhaps ACUS’s greatest achievement: the reform of sovereign immunity which went from Recommendation 69-1 to 5 USC § 702. Jon, a federal-courts teacher of great distinction, was the first Research Director during my chairmanship. He came to us from George Washington University Law School through the wonders of the Intergovernmental Personnel Act, which facilitates periodic transfers between government and academia.
Shawne McGibbon, ACUS’s General Counsel, deftly introduces this series and reminds us that “when ACUS speaks, people listen.” While I agree with that sentiment generally, it is also true for Shawne herself since, after I smartly hired her as General Counsel, she gave exceptional legal advice about the various and sometimes hidden pitfalls that government rules and regulations often present.
This is certainly a fine lineup of ACUS stars and important subjects. It is no diminishment to them that others could have delivered compelling statements as well. The Conference bench is very deep as is its leadership, which stretches from Jerre Williams to Matt Wiener. So what can this former Chairman, consultant, member and Senior Fellow contribute?
The Quiet Virtues of Consensus Reaffirmed With A Qualification
President Kennedy’s Executive Order 10934 stated that “All executive departments and administrative agencies are authorized and directed to cooperate with the Conference,” but ACUS was given no power to compel such cooperation let alone the kind of subpoena power that DOJ commands. I have always believed that was a smart and proper choice since the powers of persuasion and consensus provide high standards and remove any reluctance to cooperate.
Put in Robert Browning’s terms, ACUS’s “reach exceeds its grasp.” Good ideas should be able to prevail on their merits, and the Conference’s duty is to find and implement them. In fact, in these contested times, the search for agreement takes on heightened meaning. Still, there were several occasions during my many years of involvement with ACUS when I wished for some more explicit techniques (short of subpoena power) to ensure agency cooperation and acceptance of agreed upon Recommendations. And there is a way to do this.
Section 595 of ACUS’s organic statute calls on the “Chairman, on behalf of the Conference, [to] transmit to the President and Congress an annual report and such interim reports as he considers desirable.” These documents are usually of general interest but might become more focused. One possibility is a kind of agency Report Card, complimenting and, where necessary, critiquing agency performance.
This has been done to good effect elsewhere in government. For example, the Government Accountability Office’s High Risk List which since 1990 has been sent to Congress. It is a list of those agencies whose programs are at a higher risk of fraud and abuse, and some programs seem never to get removed from the list. But surely, no agency wants to appear on it.
ACUS could, where necessary, do a similar thing, except that it should list both winners and losers. I’m thinking, in particular, about ACUS’s efforts over the years to encourage video hearings in agency adjudication, which have grown in importance during the pandemic. The Conference was very successful in supporting the Social Security Administration’s efforts to adopt video hearing techniques. Unfortunately, not all agencies have taken full advantage of new technology, and some may roll back any initiatives developed during the pandemic. A report from ACUS to the President and Congress outlining the backlog-reducing and cost-saving virtues of this technology could institutionalize recent, successful innovations and spur new ones.
In this way, ACUS might subtly increase cooperation and implementation by the agencies. If a few agency toes are treaded upon, it will occur only lightly and with the best of intentions.
Paul R. Verkuil is a Senior Fellow of ACUS and served as its Chairman from 2010 to 2015. Before becoming Chairman, he served as a Public Member from 1982 to 1995 and as a consultant to the Conference beginning in 1974.