An America250 funeral for the 80-year-old Administrative Procedure Act

Clyde Wayne Crews Jr.

As America approaches its 250th anniversary, another institution reaches a milestone of its own. The Administrative Procedure Act of 1946 (APA, P.L. 79-404), which set the rules for administrative rulemaking and judicial review, turned 80 this year.

Rather than celebrating that constitutional detour the way we exalt our Declaration this July, we should consider a dignified retirement for it. The APA of 1946 amounted to Congress compelling the Constitution to deliver a concession speech to the New Deal, but today we treat it as normalcy.

The contemporaneous Legislative Reorganization Act of 1946 (LRA, P.L. 79-601) was intended to rearrange congressional committees to oversee the new bureaucracy and reaffirm legislative primacy. But Congress nonetheless made peace with the delegation of lawmaking authority to the executive branch.

To the extent the LRA represented an attempt to claw back legislative power, those ambitions arguably yielded to inadequate, accommodative judicial substitutes. Courts still wrangle with administrative-state power and occasionally tamp it down, but the more fundamental question—whether the administrative state itself should exist—was effectively conceded by Congress 80 years ago, leaving only minor deck-chair disputes over who manages it and how.

The APA arrived only after the New Deal had transformed the federal government and entrenched a vast administrative apparatus that should never have been established. It cannot properly be deemed an instrument to protect the public. The public had already been protected by the Framers’ constitutional design.

After the New Deal upheavals, the APA arrived to regularize, legitimize, and institutionalize the progressive administrative state. While it may constrain agencies procedurally, it also constrains Congress from pursuing more aggressive structural rollbacks, effectively armor-plating the administrative state. Because of the APA, Americans were reconciled to the administrative state by the bicentennial and habituated to it by America’s quarter millennium. The APA’s great achievement was not protecting Americans from the new bureaucracy, but protecting the new bureaucracy from Americans.

This acquiescence to centralized administration is harmful even in day-to-day governance. The administrative state takes market failure for granted while disregarding political failure. It allows agencies to survive, adapt, and persist without any demonstration of net benefits. That is because the regulatory environment lacks genuine competitive exit, automatic correction mechanisms, and failure discipline. The recurring but ignored lesson is that concentrated political authority suffers from knowledge problems, incentive problems, and accountability problems every bit as serious as the market failures regulators claim to correct.

Libertarians and constitutionalists are often tempted to embrace reforms of the APA as a path toward restoring limited government. The proposed Regulatory Accountability Act, for example, would codify elements of the regulatory review executive orders, including strengthened cost-benefit analysis. And earlier this month, Rep. Harriet Hageman (R-WY) introduced proposals to strengthen judicial review under the APA. Her bills require courts to independently assess facts and law rather than defer reflexively to agency determinations. And they prevent agencies from cloaking policy judgments in scientific assertions insulated from meaningful review.

Measures like these deserve support. (The Competitive Enterprise Institute, in fact, issued a statement of support.) But they should be viewed as bridges, not destinations. The deeper problem is not procedural failure but political failure—manifested in agency displacement of competitive disciplines and counterproductive steering of the economy. Regulatory interventions accumulate regardless of performance or cost. Agencies rarely disappear. And despite decades of executive orders and statutory requirements, no comprehensive accounting of regulatory burdens exists. The administrative state is the wrong institution for both liberty and effective regulation.

The APA’s notice-and-comment procedures are often portrayed as democratic safeguards, yet vast categories of agency action escape them altogether. Policy statements and “interpretative rules,” as the APA calls them—now embodied in guidance documents, memoranda, bulletins, circulars, and other forms of regulatory “dark matter”—increasingly shape economic activity without undergoing the scrutiny associated with APA rulemaking. Distinctions between independent and executive agencies remain arbitrary, and the former remain largely outside meaningful executive oversight. Agencies continue to exercise legislative, executive, and judicial functions simultaneously.

As America250 approaches, the task should not be merely to improve the administrative state by tweaking the APA. More appropriate is the sledgehammer of a Congress reclaiming responsibilities it delegated away (and then, restraining itself). Replacement institutions should internalize the lesson that political rather than market failure predominates. A Congressional Office of Regulatory Analysis replacing failed Office of Management Budget mechanisms would be a start. Better still would be a Congressional Office of Political Failure Analysis.

The APA may still provide useful guardrails while larger reforms take shape. But procedural refinements cannot cure structural defects that make expanding programs easier than reducing, devolving, or eliminating them. Eighty years is a respectable lifespan. For the APA, America250 may be an appropriate occasion for a dignified funeral rather than a birthday party.

We declared independence from Britain 250 years ago. It is time to declare independence from the APA and New Deal progressivism as well.

For more see:

James E. Brazier, “An Anti-New Dealer Legacy: The Administrative Procedure Act,” Journal of Policy History, Cambridge University Press, 2015.

Clyde Wayne Crews Jr., “What’s the Difference between ‘Major,’ ‘Significant,’ and All Those Other Federal Rule Categories? A Case for Streamlining Regulatory Impact Classification,” Competitive Enterprise Institute, September 2017.

Clyde Wayne Crews Jr., “A Deep State Guide to Post-Chevron Regulating,” Forbes, July 9, 2024.

Joseph Postell, “The Decision of 1946: The Legislative Reorganization Act and the Administrative Procedure Act,” George Mason Law Review, George Mason University Antonin Scalia Law School, 2021.

Clyde Wayne Crews Jr., “OPFAIL: Establishing a Congressional Office of Political Failure Analysis,” Competitive Enterprise Institute, May 26, 2026.

Clyde Wayne Crews Jr., “What if the Administrative State Cannot Be Reformed?“ Forbes, May 13, 2019.