This essay was authored by ACUS General Counsel Shawne McGibbon. It is the first 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.
The Administrative Procedure Act (APA) was born on June 11, 1946—75 years ago. I’m amazed at its age because it looks almost the same now as it did all those years ago and seems no worse for wear. What’s the secret to its longevity? How does a relatively short statute—about nine pages in length—survive mostly unscathed?
Whatever its secret to survival, it is the essential roadmap that directs our federal system of rulemaking, regulatory enforcement, adjudication, and judicial review. It places important checks on agencies’ authority by ensuring that they provide opportunities for public input in the rulemaking process, alert the public to their governing rules and procedures, follow established procedures for rulemaking and adjudication, and more. In essence, the statute is a baseline that governs all federal administrative procedure.
Over the years, several statutes and executive orders have helped fill in some of the gaps in the APA. Those efforts did not change the underlying tenets of the APA, but they expanded and enhanced key concepts articulated in the Act, such as open government and public participation. Two such statutes include the Negotiated Rulemaking (Reg Neg) Act and Administrative Dispute Resolution (ADR) Act, both adopted in 1990.
ACUS played a major role in efforts to draft and pass both laws and implement them. The ADR Act directed ACUS to report to Congress periodically on agencies’ compliance with the Act and to offer training to agencies. To say that the concept of Reg Neg was created at ACUS is not an overstatement since it was based on a 1982 ACUS report and recommendation as well as the hard work and diligence of ACUS staff. The Reg Neg Act established ACUS as a clearinghouse of information and expertise on the subject. ACUS took the lead in helping agencies implement both laws, by convening officials and publishing sourcebooks on both.
ACUS certainly became a recognized leader in both areas—all in service of the principles underpinning the APA—and remains so today. Recent successes include recommendations on how agencies can improve their processes through using reg neg, ADR to resolve FOIA disputes, and ombuds; an ongoing project surveying agencies’ use of ADR in agency adjudication; and a brand-new ADR Advisory Group.
ACUS’s mission is tied inextricably to the APA. A glance at the Administrative Conference Act proves this. The Act mandates that ACUS “promote more effective participation and efficiency in the rulemaking process” and “improve the effectiveness of laws applicable to the regulatory process.” These mandates sometimes manifested in new legislation, as noted above; but more commonly, ACUS's body of recommendations and official statements have led to improvements and best practices in rulemaking and adjudication at the agency level without the need for legislation.
ACUS is able to accomplish its mission, not because it possesses a hammer to enforce its edicts, but because of the collaborative process employed to develop its recommendations and the caliber of its staff and membership. I recall having the opportunity to address the ACUS Assembly at the 66th Plenary Session in 2016. I remarked at the impressive crowd before me: Judge Stephen F. Williams, Senior Circuit Judge for U.S. Court of Appeals for the D.C. Circuit; renowned practitioner Ted Olson; the chairs of various boards and commissions; and William Webster, who as far as I’m aware, is the only person to have served as a federal judge, FBI Director, and CIA Director.
Federal agencies implement ACUS’s recommendations because its process is transparent, because its members are the foremost experts in the field of administrative law and public administration (and represent diverse perspectives), and because it earned a reputation for bipartisan and bicameral support in Congress. When ACUS members act in concert on a particular topic to improve administrative procedures in the federal government, people listen. It reminds me of the old television commercials about the now defunct stock brokerage, E. F. Hutton. The tag line was “When E.F. Hutton speaks, people listen.” And so it goes with ACUS.
ACUS developed this blog series to reflect on the important role of the APA over the last 75 years and to recognize the significant intersection between that foundational statute and the work of ACUS. The posts that follow explore the past, present, and future for the APA and the role of ACUS in that continuum.