The Regulatory Accountability Act and the Future of APA Revision

56 Pages Posted: 4 Jan 2019 Last revised: 14 Sep 2020

See all articles by Ronald M. Levin

Ronald M. Levin

Washington University in St. Louis - School of Law

Date Written: December 18, 2018


This article seeks to take stock of the Regulatory Accountability Act (RAA), a set of proposals to amend the Administrative Procedure Act (APA). House and Senate versions of the proposed Act have been pending in Congress since 2011, although the impending advent of Democratic control of the House may halt further progress on the bills in their present form. Some provisions in the RAA are desirable or at least supportable, because they would codify elements of current practice or make minor repairs to the APA. But other aspects of the bill are controversial and troubling. Among them are sections that would provide for (1) trial-type hearings on certain issues in proceedings to promulgate especially consequential rules; (2) mandatory findings and analyses in all notice-and-comment rulemakings; (3) judicially enforced requirements for cost-benefit analyses in major rulemakings; (4) curtailment of Auer deference; and (5) substantial evidence review of some major rules. The article examines some of the policy and drafting problems with these latter provisions. It concludes with some reflections on reasons why the RAA proponents headed in unproductive directions and how the process of APA revision could be improved in the future.

Keywords: Regulatory Accountability Act, Administrative Procedure Act, regulatory reform, rulemaking, cost-benefit analysis, judicial review, Auer, substantial evidence.

Suggested Citation

Levin, Ronald M., The Regulatory Accountability Act and the Future of APA Revision (December 18, 2018). Chicago-Kent Law Review, Vol. 94, No. 2, 2019, Washington University in St. Louis Legal Studies Research Paper No. 18-12-14, Available at SSRN:

Ronald M. Levin (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
314-935-6490 (Phone)
314-935-5356 (Fax)

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