Remarks as Prepared for Delivery
Thank you all for joining us to discuss the potential modernization of the Administrative Procedure Act (APA).
In the last several years, we have seen a remarkable resurgence of interest in the foundations and future of our laws governing administrative agencies. And for good reason: a significant portion of our law is now created through administrative processes. At this point, it is not an exaggeration to say that how a bill becomes a law can be less important than how a law is interpreted or enforced by an administrative agency.
The question of how we are ruled, then, is in great part a question of administrative law. And there is no more important statute in administrative law than the APA, which for nearly a century has established the default rules governing the federal regulatory state.
Surveying the landscape in 2019, there are at least a few reasons to think reform may be overdue. I will touch on just a couple. One, to which I have already alluded, is the exponential growth of the administrative state over the last century. Could the drafters of the APA have anticipated such a dramatic expansion in the size, number, and activities of administrative agencies? The APA’s emphasis on formal rulemaking and formal adjudication – elaborate trial-like procedures that are virtually never used today – suggests a rather different vision.
At the same time, courts have developed administrative law doctrines that seem to give judges nearly unlimited discretion to block changes in policy. In Section 706 of the APA, for example, courts are instructed to invalidate agency actions that are “arbitrary, capricious, . . . or otherwise not in accordance with law.” Today, despite this seemingly deferential language, virtually every significant action is challenged as “arbitrary and capricious.” Some scholars have suggested that the “arbitrary and capricious” standard was intended to codify rational basis review. More recently, courts appear to have applied a more searching standard of “hard look” review. Either way, it’s hard to escape the impression that application of the arbitrary and capricious standard has itself become arbitrary and capricious. And when court decisions appear to be exercises of will rather than judgment, the rule of law suffers.
Meanwhile, elsewhere in Section 706, language directing courts to “set aside agency action” has become a prime vehicle for the proliferation of nationwide injunctions. Those expansive remedies have been criticized for encouraging aggressive forum shopping, circumventing the established procedures for class action litigation, and empowering individual district court judges to short-circuit the normal percolation of legal issues throughout the country. Whether or not the APA ever contemplated this state of affairs, these concerns warrant our careful consideration.
In the end, reasonable minds may differ about how best to address these and other questions in administrative law. Today’s summit will undoubtedly yield a variety of potential answers. But part of the virtue of today’s summit is asking the questions in the first place. Every day, in courts across the country, the Department of Justice represents the United States in high-stakes, fast-moving litigation that demands the nearly constant attention of both litigators and leadership. But we do recognize that, in the long run, the issues we are taking the time to discuss today are no less important to the department’s mission. Although we remain immersed in the legal controversies of the moment, I am proud to see the department taking a step back to reflect on these big questions. As you will hear from our next speaker, that is in keeping with a long tradition at the Justice Department, dating back to its prominent role in the drafting of the original APA.
At this time, it is my honor to introduce the Solicitor General of the United States, Noel Francisco. Noel has had an exemplary career in public service and private practice – one that has put him at the center of some of the most vital debates in administrative law today. Before joining the Justice Department, he was a partner in the Washington, D.C., office of Jones Day, where he chaired the firm’s Government Regulation practice and argued a number of important cases before the Supreme Court, including the landmark separation of powers case NLRB v. Noel Canning. From 2001 to 2003, he served in the White House Counsel’s Office as Associate Counsel to President George W. Bush, and from 2003 to 2005 he served as a Deputy Assistant Attorney General in the Justice Department’s Office of Legal Counsel. Earlier in his career, he clerked for Judge J. Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit and Justice Antonin Scalia of the United States Supreme Court. He was confirmed as the 48th Solicitor General of the United States in September of 2017 and has led that office with distinction for the past two years. Please join me in welcoming Solicitor General Noel Francisco.