By AAROL Member Malcolm Russell-Einhorn.
Against the backdrop of America’s Constitution Day on September 17, many pundits and ordinary citizens have asked whether the country is approaching, or in, a constitutional crisis. After all, in recent months, the nation has witnessed the Trump Administration flooding the zone of federal governance with scores of legally dubious, norm-breaking Executive Orders and agency actions affecting established, often bipartisan programs, regulations, institutions, and funding streams on which citizens have depended for decades. With Congress almost wholly abdicating its legislative and oversight responsibilities, the judiciary (mostly the lower courts) has acted as the sole institutional check on executive overreach—and even then, the Administration has largely dragged its feet in responding to court orders. What many don’t appreciate is that the legal struggles to curb Presidential aggrandizement haven’t necessarily revolved around constitutional requirements, but rather those of the Constitution’s unglamorous public law cousin—the Administrative Procedure Act (APA).
The APA constitutes the fundamental charter of the contemporary administrative state, mediating disputes between the federal government and individual citizens and businesses. Critically, it establishes both the process that federal agencies must follow when creating new rules and regulations (by notifying the public of a proposed rule, soliciting public comments, and publishing their findings), and the standards of reasoned decision-making by which courts should review those actions (rejecting so-called ‘arbitrary and capricious’ justifications). When it was adopted in 1946, the APA was viewed in many quarters as a critical quasi-constitutional compact, whereby the President, Congress, and the Supreme Court conceded broad delegations of regulatory authority to agencies on the condition that such bodies be transparent in their policymaking, procedurally constrained, and subject to judicial oversight.
In just the first nine months of his administration, the President has shredded many of the long-standing interpretations of the APA that stem from this compact and thereby foster regulatory legitimacy, fairness, and predictability for citizens and businesses. Indeed, many of the recent challenges to the President’s actions on civil service rules, immigration enforcement, birthright citizenship, agency funding freezes, and cuts to foreign aid have relied on the APA as a critical tool. Take three notable examples: in June, a District Court held that the Trump Administration’s decision to terminate millions of dollars of National Institutes of Health grants was arbitrary and capricious, lacking a legally valid and reasoned basis. Another case contested Secretary of State Marco Rubio’s order claiming that virtually all immigration and trade matters constitute otherwise narrowly construed ‘foreign affairs functions,’ thereby exempting them from notice-and-comment procedures despite the fact that courts have previously rejected such a broad interpretation. And yet another case challenged a Presidential deregulatory directive in April vaguely ordering all federal agencies to forgo notice-and-comment whenever an agency determines—for and by itself—that a regulation is ‘facially unlawful.’
Many lower courts have pushed back on these kinds of hastily drafted, poorly articulated executive and agency actions that fail to provide underlying data and reasoning, or that purport to dispense with notice-and-comment procedures for ‘good cause’ (often on the spurious grounds that some emergency or other exigency exists). And aggrieved parties and courts will likely continue to push back against these brazen interpretations in the months ahead, with good reason: even during President Trump’s less tumultuous first term, judges ruled against the government in 77% of legal challenges to agency action, according to legal scholar Bethany Davis Noll. The APA may also get more use in the future as a means of securing nationwide remedies from lower courts in administrative cases; the Supreme Court recently left that door open in the birthright citizenship case that otherwise limited such relief.
The current incursions on our APA-grounded system of administrative justice represent nothing less than a frontal assault on both the Rule of Law and democratic governance. This authoritarian turn, occurring the world over, underscores just how fragile many public administration and justice institutions can be—from the most rudimentary to the most well developed. When I worked over a period of three decades on various administrative justice-related initiatives funded by the US Agency for International Development (USAID), the World Bank, or certain foundations —in places such as the Balkans, the Baltic states, Central Asia, and East Africa (which often had a legacy of rule by law rather than the rule of law)—I witnessed how much ordinary citizens and businesspeople thirsted for basic government accountability on the front lines. In most cases, their underlying concerns did not implicate lofty issues of human rights or even criminal justice, which typically affect a relatively small proportion of the population. Rather, they touched upon everyday matters such as obtaining a birth certificate, securing a construction permit, confirming a welfare benefit, or challenging a tax assessment or procurement decision. And the tools they wanted were basic ones: decently reasoned bureaucratic decisions, ways to be consulted on proposed rules, access to basic government information, and uncomplicated mechanisms for redress.
In recognizing the global centrality of these concerns to human well-being and the fundamental obligations of the modern state to its citizens, it’s clear how little we in the United States can afford to be complacent about the current moment, even with our well-developed legal infrastructure and much celebrated Constitution. At the same time, we must recognize how particularly valuable our legal profession and judicial institutions are, and how our own citizens need to better appreciate—and use to their fullest advantage—the seemingly mundane, but extraordinarily precious eight decade-old instrument that is the Administrative Procedure Act. Yes, the APA needs updating; there are proposals to require more agency disclosure of data, studies, and other information to the public, as well as more systematic retrospective review of potentially outmoded regulations. But the current APA represents a signal achievement that the President—and the Supreme Court—tamper with at our peril.
Hear more from Malcolm Russell-Einhorn in his in-depth discussion on “Why Rule of Law Matters: Insights on Global Justice and Democracy” here.
ABOUT THE AUTHOR: Malcolm Russell-Einhorn is a lawyer and Research Professor of International Affairs at the George Washington University’s Elliott School of International Affairs, where he focuses on comparative legal and regulatory reform in developing countries. He has worked on a wide variety of administrative justice, public administration, and civil society strengthening programs in over 20 countries over a three decade-long career.
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