Avoiding Authoritarianism in the Administrative Procedure Act

Abstract

In the 1930s and 1940s, while Congress deliberated how to control the exploding federal bureaucracy, authoritarian regimes grew overseas, raising the specter that the United States would follow suit. Many Americans viewed the New Deal as “dictatorial central planning” and feared that President Franklin Delano Roosevelt would become the United States’ first authoritarian leader. That fear shaped the Administrative Procedure Act of 1946 (“APA”). Congress designed the APA’s constraints on agency procedure and provisions for judicial oversight to prevent agencies from becoming the tools of a dictator. Now the APA operates as the constitution for the Administrative State and has earned the title “superstatute.” Yet, seventy-five years after its enactment, the APA has failed to forestall the United States’ slide toward authoritarianism. This Article traces the APA’s anti-authoritarian lineage and begins to explore why it failed to live up to its billing.

Keywords: Administrative Procedure Act, authoritarianism