DC Journal: The Administrative Procedure Act at 80 — Still Falling Short
Eighty years ago, in June 1946, Congress passed the Administrative Procedure Act. It was hailed by one of its principal drafters, Sen. Patrick McCarran, D-Nev., as “a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated” by federal agencies.
In the intervening years, the APA has too often failed to protect ordinary Americans from the threat of an ever-growing administrative state.
The APA was initially enacted in response to the growth of regulations brought on by the New Deal. In 1940, efforts to provide accountability for the growing fourth branch of government produced the Walter-Logan Act, which President Franklin Roosevelt vetoed. His Department of Justice responded with the famous 1941 Attorney General’s Report, which offered a series of more moderate reforms to tame the administrative state. The attorney general, Robert Jackson, would then be put on the Supreme Court that year.
The attorney general’s report was hugely influential in laying the grounds for the APA. Plans for reform were then put on hold with the onset of World War II; however, after the Allied victory, Congress once again sought to restrain the regulatory state. What resulted was the Administrative Procedure Act.
The APA requires the notice-and-comment process for new rules. During this period, the public gets notice of a new rule and can provide feedback. It also provides courts with a judicial review provision to set aside agency action for various reasons. Unfortunately, in practice, many of these protections were eroded away without proper policing from the courts.
To start, agencies almost never engage in formal rulemaking (so much so that Supreme Court Justice Clarence Thomas has called it the “yeti of administrative law”). Agencies often avoid rulemaking altogether by issuing guidance to establish new policies. However, when agencies opt to engage in informal rulemaking, the deck is still stacked in the agency’s favor in court,
After the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, courts began to defer to agencies whenever they found a statute “ambiguous,” entering an era of broad deference to the administrative state. Even after the Supreme Court overruled this doctrine in 2024 with Loper Bright Enterprises v. Raimondo, courts still defer to an agency’s interpretation of its own facts. Challenging agency actions under the APA makes the work of regulated parties incredibly difficult.
Courts rarely provide a fresh, or what is called de novo, review of facts that an agency has found. This essentially allows the agencies to shape the factual background before a neutral Article III court considers a challenge to an agency action.
Congress has a way to fix some of these defects. Rep. Harriet Hageman, R-Wyo., has introduced two bills to amend the APA. The first would require courts to review an agency’s fact-finding anew for agency actions. If a regulated party is attempting to fight back against an agency, it is entirely unfair that the agency can determine all the facts in the situation. This level of deference gives agencies an advantage in every action they take.
The second bill would require that courts set aside agency actions based on findings that are not the product of “reliable scientific principles and methods, or that do not reflect a reliable application of those principles and methods.” This standard, referred to as the Daubert standard, has been used for decades as a basic rule of evidence in trials. The administrative state should be subject to the same rules as anyone else when in court.
Congress should pass both pieces of legislation and level the playing field for regulated parties. These changes would fulfill the spirit of the APA, which was designed to protect Americans from the growing administrative state.
The federal government has tremendous advantages when it decides to regulate Americans. It will continue to abuse these powers until courts put a stop to it. By amending the APA, Congress can clarify that every American deserves their fair day in court, especially when a government agency is on the other side.
This op-ed was originally published in DC Journal on June 23, 2026.
