Solicitor General Noel Francisco Delivers Remarks at Department of Justice Summit on Modernizing the Administrative Procedure Act

Remarks as Prepared for Delivery

Thank you very much. I am pleased to welcome you – or, for many of you, to welcome you back – to the Department of Justice, and to kick off this important summit on modernizing the Administrative Procedure Act (APA). We are fortunate to have a wide variety of leaders in administrative law – spanning academia, private practice, and government – here to share ideas on how the APA can be improved. To set the stage for that discussion, I want to say a few words about how the APA came to be.

It is fitting that the Department of Justice is hosting this summit, because the Department played a significant role in shaping the original APA. The process that culminated in the APA began in the 1930s, when the federal government’s effort to implement the New Deal led to dramatic growth in both the size and scope of the administrative state. This growth spurred calls from legislators, advocacy organizations, and regulated entities, among others, to impose some limits on the administrative state. By early 1939, several reform bills – some of them highly restrictive of federal agencies – had been introduced in Congress. Although it may seem hard to believe, the federal government was not wild about the idea of limiting its own power. But given the political realities, and perhaps the strength of the arguments on the merits, the Roosevelt Administration sensed that reform was inevitable. So rather than fight any effort to rein in federal agencies, the Administration instead sought to play an affirmative role in shaping the new law.

To that end, President Roosevelt asked his Attorney General, future Supreme Court Justice Frank Murphy, to create a committee to study the issue and propose legislation. In response, Attorney General Murphy created the Attorney General’s Committee on Administrative Procedure, which included some brilliant legal minds, including then-Solicitor General Robert Jackson, Professor Henry Hart of Harvard Law School, and future Secretary of State Dean Acheson.

While the Attorney General’s Committee worked to come up with its own proposed legislation, Congress was busy considering the bills that had already been introduced. In December 1940, Congress passed what was known as the Walter-Logan Bill — a bill that was highly restrictive of federal agencies. As was expected, President Roosevelt swiftly vetoed the legislation, and Congress was unable to override his veto.

The following month, January 1941, the Attorney General’s Committee submitted its report, which spanned 474 pages and contained nearly 60 pages of conclusions. Although a few committee members issued dissenting statements on some issues, the Committee agreed on most of the report’s recommendations. The Attorney General’s report sparked several bills in Congress, including one encompassing the majority conclusions and another the dissenting conclusions. And so the congressional debate over administrative reform continued.

But later that year, any concern about administrative reform was eclipsed by a far graver crisis. On Dec. 7, 1941 — 78 years ago tomorrow — our country was attacked at Pearl Harbor. In response, Congress and the President alike focused their energy on winning World War II. Only once the triumph of Allied Forces became certain did Congress fully turn its attention back to administrative reform.

By that time, the Attorney General’s Committee Report had fully reshaped the legislative debate, thus vindicating the Justice Department’s decision to play a leadership role in the reform debate. In fact, the bill that ultimately became the APA in 1946 contained many of the same reforms offered by the Attorney General’s report. And after the bill’s passage, the Department continued to shape the debate by issuing the Attorney General’s Manual on the Administrative Procedure Act, which has been highly influential in the judicial interpretation of the APA.

Looking back from the distance of almost 75 years, I think it’s clear that the APA has at least helped to hold administrative agencies to basic standards of rationality and procedural fairness. The administrative state is certainly more transparent and accountable than it would have been without the APA.  

Of course, the APA wasn’t and isn’t perfect. Back when I was in private practice – a practice that included litigating lots cases on behalf of clients challenging federal agency actions under the APA – I testified before the House Judiciary Committee about the need for APA reform. In my testimony, I highlighted three areas where I thought the balance had tilted too far in favor of judicial deference to agencies and away from judicial oversight. Specifically, I discussed the trend of agencies using informal rulemaking more often than formal rulemaking to reduce judicial oversight; the courts’ increasing deference to agency interpretations of the law; and judicial under-enforcement of statutes passed by Congress to promote agency transparency and accountability, like the Information Quality Act and the Regulatory Flexibility Act.

As Solicitor General representing the federal government, I have a different vantage point from which to consider the APA. In fact, several of the most important cases that I’ve argued in the Supreme Court over the past few years have involved issues related to the APA, including the challenges to the President’s travel proclamation and the Department of Homeland Security’s rescission of the DACA program. And I see an even larger number of APA decisions from the lower courts as part of my responsibility to authorize government appeals and emergency-relief requests. Some of those cases have highlighted the danger of courts using the APA to second-guess the Executive Branch’s legitimate exercise of statutory authority. But I also continue to believe, as I testified back in 2011, that courts have an appropriate role to play in limiting agency excesses and enforcing the statutes Congress enacted.  

That was the balance the Department tried to strike in the brief we filed last term in Kisor v. Wilkie, in which we argued that the Court should constrain, but not wholly eliminate, the deference that courts grant to agencies’ interpretation of the law. The Supreme Court’s opinion largely adopted our argument. In my view, that was a positive step toward restoring the right balance between the branches.

Any progress made through litigation, however, is modest compared to what can be accomplished through legislative reform of the APA. That is the primary topic of this summit. The first panel, entitled “Lessons from the Life of Administrative Law: What Experience Teaches About How the APA Can Be Improved,” will focus on the ways that administrative law and the administrative state have changed over the seven decades since the APA’s enactment, and what those developments mean for legislative reform efforts. The second panel, “APA Reform: What’s on the Table,” will focus on the numerous legislative proposals that have been made – and in some cases passed by the House – to reform the APA, including by expanding hybrid and formal rulemaking, increasing the use of cost-benefit analysis, and broadening the scope and rigor of judicial review. The third panel will focus on the significant regulatory reforms undertaken by the administration over the past three years, such as limiting the practice of rulemaking by guidance, and on the prospects of codifying those reforms in legislation. And finally, Deputy Attorney General Jeff Rosen, who brings to this job his decades of experience in administrative law both in and out of government, will deliver a keynote address discussing the Department’s reform plans in greater depth.

By convening this summit, and by taking on the issue of APA reform more broadly, the Department of Justice is playing a critical leadership role in the legislative debate, just as it did in the passage of the APA. Enacting meaningful legislation will not be easy today, just as it was not easy then. But history shows that it is possible, and that is worth the effort. Modernizing and improving the APA is an important mission for the Department – and for the Nation – and we will benefit greatly from the contributions of all of you.

Thank you all for playing a part, and I look forward to the discussion.