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In brief...
After 80 years, the Administrative Procedure Act’s simple framework for ensuring new federal regulations are based on public notice, comment, and reasoned justification endures, even as judicial decisions, executive orders, and analytical requirements have transformed what it called “informal rulemaking” into a complex process. Recent efforts to streamline deregulation test the limits of the APA’s narrow exceptions and longstanding procedural safeguards.
Most Americans are probably unaware that this year marks not only the 250th anniversary of our nation’s founding, but also the 80th anniversary of a little-known law that serves as a constitution of sorts for the administrative state.
Signed by President Truman on June 11, 1946 (after more than a decade of debate), the Administrative Procedure Act (APA) established procedures an agency must follow to issue binding rules and regulations. The original requirements were strikingly simple, even if novel at the time. First, agencies must begin with a delegation of authority from Congress. Second, they must provide public notice of a proposed rule and “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” After considering public comments, the agency must “incorporate in the rules adopted a concise general statement of their basis and purpose.” Final rules are subject to judicial review to determine whether they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
For the last 80 years, Congress has not amended these basic steps, though it has added some layers, such as the Congressional Review Act provision that agencies must submit final rules to Congress. Agencies themselves have expanded upon the basics, however. They occasionally provide advance notice of proposed rulemakings to seek input from the public before proposing specific actions. They’ll also issue supplemental notices to get feedback on new information before issuing a final rule. With the advent of the internet, they now post rules, along with preambles and supporting documentation, on agency websites and the central Regulations.gov portal.
Presidents have required agencies to support their rulemaking with regulatory impact analyses, clearly identifying what problem they’re trying to solve, examining alternative approaches, and selecting options only after weighing both benefits and costs. These analyses and other technical support documents can exceed hundreds of pages for high-impact rules.
Judicial review has also imposed more extensive steps. In Motor Vehicle Manufacturers Ass’n v. State Farm (1983), the Supreme Court held that an agency rescinding a rule is subject to the same “arbitrary and capricious” standard as one issuing a rule in the first place. The Court struck down the rescission of an automobile passive-restraint standard because the Department of Transportation had failed to examine the relevant evidence and adequately explain its reasoning, including its failure to consider the obvious alternative of requiring airbags. Deregulating, in other words, demands the same record-building as regulating, a point that looms large over current efforts to roll regulations back.
For decades after the mid-1980s, courts deferred to agencies’ reasonable interpretations of the statutory language authorizing their regulations. Recently, in Loper Bright Enterprises v. Raimondo (2024), the Supreme Court rejected that long-standing deference, citing the APA’s command that reviewing courts, not executive branch agencies, “decide all relevant questions of law.”
The Trump administration has embraced this and other recent opinions, including West Virginia v. EPA (2022), and has directed agencies to focus more on statutory interpretation to reverse existing rules than on analysis of impacts. In a memorandum titled “Streamlining the Review of Deregulatory Actions,” issued in October 2025, acting Administrator of the Office of Information and Regulatory Affairs Jeffrey Bossert Clark directed agencies to invoke the APA’s “good cause” exception to avoid public notice and comment when repealing rules deemed “facially unlawful,” calling “reflexive adherence” to notice and comment “improper” in such cases. The memo frames itself as a remedy for what Clark referred to as the “ossification” of rulemaking, a term used to describe the accretion of procedure traced above.
While it may not be surprising that the current administration now seeks to avoid some of those steps using the APA’s own narrow exceptions, the courts may not go along, especially now that they no longer defer to agencies’ interpretations of their authority. The “good cause” exception has traditionally been read narrowly, and State Farm still requires reasoned, record-based justification for undoing a rule.
Here lies the irony of the APA at 80. The core rulemaking provisions of the act have not been substantively amended, and its central innovation—tell the public what you propose, let them be heard, and explain yourself—remains a hallmark of U.S. regulatory procedure. However, eight decades of judicial gloss, executive orders, and analytical requirements have morphed that spare framework, what the APA referred to as the “informal” rulemaking process, into a complex regime.
For better or for worse, as the regulatory state has grown, so have the requirements to justify government constraints on private activity with evidence and public input. President Truman may not have anticipated the extent of current regulatory procedure, but the APA laid the foundation for it. At this point, given the scope of regulation and the need for reform and restraint, the relevant question about the APA in the 21st century may be: Is it enough?