Few Americans outside of politics have ever heard of the Administration Procedure Act of 1946, but it’s importance on the lives of every single one of us cannot be overstated.
That’s because the law, codified in 5 U.S.C. §§ 551-559, marked the growth of the so-called ‘fourth branch of government,’ the behemoth federal bureaucracy, which is filled with nameless, faceless and, most importantly, unelected careerists whose sole purpose in life is to create, then “manage,” new federal rules and regulations.
The APA defines an “agency” broadly, and does not explicitly exclude the Office of the President, though it is generally believed that Congress would have to expressly act in order to apply APA requirements to the President.
The APA serves to police improper agency behavior, protect public safety, and secure proper entitlements. The APA governs all three main agency functions: rulemakings, adjudications, and licensing.
All federal rules and regulations are summarily published online.
What has occurred over the 70-odd-year span since the APA was passed and signed into law following World War II is a steady growth of federal rules and regulations that, when implemented, have the force of law, with financial and judicial penalties for non-compliance attached to them, as if they were laws unto themselves.
In fact, they aren’t “laws,” per se, even though laws were passed authorizing the creation of the various federal agencies. Rather, they are rules and regulations implemented by bureaucrats who are not accountable to the general public, are sequestered away in their various agencies and departments and essentially guaranteed a lifetime of employment, thanks to protective public union labor laws, and paid generous, taxpayer-supported salaries and benefits.
Their jobs, then, are to perpetuate the existence of the bureaucracy, for if there are no new rules and regulations to implement and then enforce and manage, then there is no reason for agencies to expand in both size and power. Bureaucrats’ worst nightmare is to appear unnecessary and impotent.
But federal bureaucrats, and the Administration Procedure Act of 1946 itself, may have met their match in President-elect Donald J. Trump, who has vowed to trim the massive ‘Administrative Branch.’ And he looks to be getting some help from the GOP majority in Congress.
As noted by The Hill, the House has begun the first real effort to reform the APA. Introduced by Rep. Bob Goodlatte, R-Va., the House has passed the Regulatory Accountability Act, with a similar measure having been introduced in the Senate by Sen. Rob Portman, R-Ohio.
What’s key to note is that it does not dismantle the Administrative Branch, per se, but instead divides it between general regulations that are necessary to keep constitutional governmental functions working and those high-impact rules that are transformative and cost the U.S. economy between $100 million and billions of dollars per year.
“The U.S. Chamber of Commerce’s analysis of the regulatory state found that of the approximately 4,000 regulations published annually only a few—under 25 regulations—would be deemed transformative,” The Hill reported.
This will give the American people a voice, through their elected representatives, over whether or not they approve of or reject major rules that have often negative effects on their lives.
But that said, by focusing on the high-impact, transformative regulations, Congress can still permit the bureaucracy to function—though even those basic functions are likely to be analyzed by the Trump team, given his experience with having to deal with scores of federal agencies and their arcane regulations in his prior life as a billionaire businessman.
For those of us who have been waiting for a president and a Congress to dramatically pare back the massive federal bureaucracy, that time appears to have arrived.