Chairman Nadler Statement for Hearing on "The Administrative Procedure Act at 75: Ensuring the Rulemaking Process is Transparent, Accountable, and Effective"
Washington, December 1, 2021
Washington, D.C. - Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during a Subcommittee on Antitrust, Commercial, and Administrative Law hearing on "The Administrative Procedure Act at 75: Ensuring the Rulemaking Process is Transparent, Accountable, and Effective:"
"Mr. Chairman, since its enactment 75 years ago, the Administrative Procedure Act has served as the foundational law governing the processes and procedures of the federal rulemaking system.
"The safeguards established by the APA ensure that the public has the right to know about potential regulatory action and the opportunity to provide useful and timely input to improve the rules issued by federal agencies. They also provide the public with due process in rulemaking and require agencies to provide a reasoned analysis for their decision-making.
"The APA, along with judicial review, places essential guardrails on the rulemaking process to protect the public from arbitrary and lawless agency action. In part, because of these features, the APA serves as a quasi-constitution for agency accountability and the rule of law. But many administrative law experts believe that there is significant room for improvement. Today’s hearing is an opportunity to examine whether the APA is successfully serving its important goals.
"Some experts argue that the various legal checks on agencies and the oversight mechanisms that are in place need to be strengthened or streamlined. Other leading scholars have explained that because the benefits of agency action often can be difficult to quantify, agencies have become over-reliant on industry-supplied cost estimates, making it more difficult to issue strong regulations that protect the public.
"In other cases, the regulatory system has routinely failed to reflect adequately the input of frontline workers or marginalized communities, which are often denied a place at the table during this process.
"In a complex and constantly evolving world, it is critical that we have an agile and effective regulatory system to address the many challenges we face.
"That is why I appreciate the efforts of the Subcommittee’s Vice Chair, Representative Jayapal, to make the rulemaking process more inclusive, accountable and transparent. Her legislation, the 'Stop Corporate Capture Act,' removes opportunities and incentives for fraud and deception in rulemaking proceedings and eliminates unnecessary bottlenecks that delay important regulatory initiatives.
"I want to thank Congresswoman Jayapal for her leadership on this legislation. I look forward to working with her, Chairman Cicilline, Ranking Member Buck, and members of the Subcommittee on these issues over the course of the next year.
"Finally, as part of the Committee’s oversight of the APA, it is crucial that we ensure that federal agencies are accountable, effective, and responsive in ways that materially improve people’s lives. The COVID-19 pandemic has demonstrated how important it is that agencies have the tools, resources, and expertise they need to serve the public.
"I was pleased to see that President Biden issued a memorandum on his first day in office directing his Administration to prioritize modernizing and improving the rulemaking process. The memo explained that 'regulations that promote the public interest are vital for tackling national priorities,' and that streamlined regulatory review is crucial for enabling the government to swiftly respond to many of the pressing issues facing our country.
"Across party lines, 71% of Americans support strong rules to protect the public, keep our workplaces safe, and protect the environment. It is critical that agencies work quickly and effectively to implement the laws reflecting the policy choices of Congress.
"I also look forward to working with the President’s permanent Director of the Office of Management and Budget and the Administrator of the Office of Information and Regulatory Affairs to ensure that federal agencies are faithfully implementing the law as well as promoting and protecting the public interest.
"These are critical roles. I was happy to see that just last week President Biden nominated Shalanda Young to serve as OMB Director. I urge the Senate to swiftly confirm her, and for the President to move quickly to name a permanent OIRA Administrator."In closing, I thank Chairman Cicilline for convening today’s hearing on this important topic, and I yield back the balance of my time."