Our Illiberal Administrative Law


In adopting the Administrative Procedure Act, the Congress intended to extend the liberal tradition - of limited government, checks and balances, and the protection of individual rights - to governance of the administrative state: The APA would give the public a way to get relief from administrative excess. Yet in the 70 years since it was enacted, evasive practices by the agencies and an increasingly deferential posture from the courts have combined to frustrate that purpose. The result is a legal regime that insulates agencies from correction and denies citizens redress. The illiberal aspects of this regime - presumptions that favor the government, unbounded delegations of authority, judicial deference on questions of law, the evasion of notice?and?comment rulemaking - do not arise from the APA itself but from the failure of courts and agencies to fulfill their obligations under the APA.