The Origin of the APA
Executive orders issued by the President of the United States are powerful tools that direct the actions of federal agencies. However, these orders may conflict with the Administrative Procedure Act (APA), crucial legislation designed to ensure transparency, public participation, and fairness in the regulatory process, holding federal agencies accountable.
Influenced by concerns over the expansion of federal regulatory agencies during the New Deal Era and the World War II effort, the APA was enacted in 1946. It stands as a cornerstone of American administrative law, intended to bring order, transparency, and fairness to the executive branch’s rule-making processes.
The APA was conceived as a response to concerns over the unchecked power of federal agencies and the potential for arbitrary decision-making that could arise from such authority. By establishing a framework for rule-making, adjudication, and providing standards for judicial review, the APA sought to ensure that agencies operate within the bounds of reason, fairness, and due process. It mandates that agencies provide public notice and an opportunity for comments before implementing new rules, which helps promote transparency and accountability.
The Application of the APA
Since its adoption, the APA has played a critical role in shaping the interaction between federal agencies, the public, and the judiciary. By requiring that agencies follow specific procedural steps, the APA seeks to avoid the creation of arbitrary or capricious regulations that could adversely affect the public.
The procedural rigor required by the APA has acted as an impediment to swift executive action, particularly under President Donald Trump. In moving quickly to reshape government through the Department of Government Efficiency (DOGE), critics have asserted that many of President Trumps executive orders and the actions of DOGE have been “arbitrary and capricious” in violation of the APA and multiple challenges have been filed in federal court.
Several of Trump’s executive orders also faced challenges under the APA during his first term.
For example, Executive Order 13769, commonly referred to as the “travel ban,” restricted travel from several Muslim-majority countries. Several states and organizations, including the state of Washington, challenged this executive order in federal court, arguing that it violated the APA by not following proper rulemaking procedures. They argued that the order was issued without adequate notice or the opportunity for public comment, as required for certain rules under the APA. They also asserted that the order was arbitrary and capricious, failing to provide sufficient reasoning or evidence to support its claims of national security threats. The Supreme Court ultimately upheld a revised version of the travel ban.
Conclusion
The APA remains a vital instrument in ensuring deliberate and transparent governance. It stands as a bulwark against hasty or poorly substantiated policy changes. While it can pose challenges to the rapid execution of presidential directives, it balances the need for efficient governance with the foundational values of accountability and public involvement.