In the first piece of this series discussing ideas in my article, I described how administrative procedure gone wrong has both stymied abundance and facilitated autocracy. In the second piece of this series, I discussed the misapprehension that a more unconstrained executive is always a more powerful executive. The third piece pivoted to history, discussing the development of federal administrative procedure from the Founding to the enactment of the Administrative Procedure Act of 1946 (APA). This piece completes the history, covering the post-APA era of administrative procedure.

The United States began to construct this current, third era of administrative procedure in the 1960s. It is characterized by two important shifts relative to the Administrative Procedure Act baseline that codified the second era: the hostile turn and the ad hoc exceptions.

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What Caused the Hostile Turn

The first shift was a sea change: the hostile turn in administrative procedure. The hostile turn first emerged from growing distrust in response to serious government failures: allowing widespread use of dangerous pesticides, destroying city centers with urban highways, permitting oil refineries to dump toxic emissions in poor and black communities, and tolerating frequent oil spills that polluted waterways (Sabin at xvii). By the 1960s, even former New Deal liberals had concluded that agencies were now too prone to being captured by the industries that they regulated (id. at 10, 12).

Reformers like Rachel Carson (the famed environmentalist) and Ralph Nader (the father of the public interest litigation movement) seized upon these failures to push for reform. At first, they attacked agencies that failed to address these problems in order to push for new regulatory statutes reflecting a scientific perspective, one that wouldn’t be so vulnerable to political interference and industry capture. They did this by elevating information drawn from the agencies themselves, as well as outside academic experts. Carson received information from experts serving in the Fish and Wildlife Service, elsewhere within the Interior Department, and in the Food and Drug Administration (as well as some industry informants) as she researched Silent Spring (id. at 20–21). Ralph Nader’s work on car safety, later published as Unsafe at Any Speed, drew upon New York state government analyses; in fact, Nader largely completed research for the work while serving as a consultant to the federal Department of Labor, gathering information across government and industry sources (id. at 27–28). The resulting legislative productivity was impressive: the Traffic Safety Act (1966) and the Highway Safety Act (1966), the Wholesome Meat Act (1967), the Natural Gas Pipeline Safety Act (1968), the Federal Coal Mine Health and Safety Act (1969), the Occupational Safety and Health Act (1970), and much more statutes creating new substantive regulatory regimes were all enacted in this period.

But by the mid-1970s, this scientific and substantive regulatory turn had clearly morphed into a hostile and procedural turn. Public interest organizations became increasingly skeptical of bigness itself, whether big business or big government (id. at 101). Organizations once founded to give voice to information unearthed by scientists and other technical experts within federal agencies that had been suppressed now “questioned technological and scientific strategies to manipulate nature to boost economic production” and “challenged administrative proceedings that generated and approved those plans” (id.). When members of the Carter administration—who saw themselves as allies of Nader’s public interest movement—sought to push “cost-effective, market-based regulatory tools” that reflected advances in economics, Nader and his allies savagely attacked them (id. at 153–54). Along with this shift in orientation came another fleet of statutes that reflected this new, hostile perspective: statutes that tied the hands of agencies through more and more onerous procedures, rather than a focus on regulating on the basis of scientific and economic expertise.

This move to procedural constraints reflected the movement’s diminished trust in “political branches of government and an increasing faith in the judiciary” (Schiller at 1180). Unlike the New Dealers discussed in the last piece, who viewed judicial review as a double-edged sword—needed to check the excesses of the political branches, but at risk of lapsing into juristocracy—the Naderite public interest movement viewed courts as a progressive force. Influential elites of the 1960s and 1970s believed that the increasing complexity of society allowed the political branches and agencies to be captured and manipulated with little democratic check. Only courts—structurally insulated from corrupting influences—would check the organized interests that had captured the political branches.

What Was the Hostile Turn?

Within the traditional narrative, the prime mover in this turn was the courts. Through doctrines like “hard look” review, expanded standing, expanded pre-enforcement review of agency action, and more elaborate rulemaking requirements, courts handcuffed government action. But as I detail in my article, little of this was new: the courts were not the primary driver of more stringent administrative procedure during the hostile turn.

In truth, the myriad procedural requirements enacted in this period did far more to shackle the state than changes in judicial doctrine did. Congress layered an alphabet soup of statutes that impose additional cross-cutting analytic or public input process requirements on agencies, like the National Environmental Policy Act (NEPA).

NEPA is worth explaining at length because so many other procedural requirements have been modeled on Section 102(2)(C) of NEPA. As NEPA has been implemented under (recently withdrawn) Council on Environmental Quality regulations as well as agency-specific regulations, the process was as follows. First, an agency determines what type of “detailed statement” of environmental impacts is required. If the agency’s action is clearly a major federal action that has significant effects on the environment, an environmental impact statement (EIS) is required. If an agency is unsure of whether a major action will have significant effects or not, it will produce an environmental assessment (EA), a more limited and concise analysis than an EIS. If the EA determines that the action does not have significant impacts, the agency memorializes this in a finding of no significant impact; otherwise, it moves to produce an EIS. If an agency believes that the action has no significant effects on the environment—because that conclusion is specified by statute or codified by rule (known as a categorical exclusion), or simply because it does not have such effects—a more limited document reflecting that determination is generally prepared. The process culminates in the agency publishing a record of decision, which identifies the agency’s preferred action among the alternatives analyzed, and announces that the agency is moving forward with that action. In light of the sparseness of the statute itself and even the regulations implementing NEPA, litigation has filled in an enormous amount of statutory detail.

Despite NEPA 102(2)(C) originally only requiring the input of relevant federal agencies (as well as appropriate state and local agencies), agencies incorporated a public comment process into NEPA regulations from nearly the beginning. Federal agencies begin the EIS process by publishing a notice of intent that solicits public comment on some planned action and relevant alternatives to that action. (This step became statutorily mandated in the Fiscal Responsibility Act of 2023.) After that public comment process, the agency then publishes a draft EIS, which (by agency rule, albeit with new exceptions created in 2025) must be subject to a public comment period. Finally, the agency published a final EIS that is accompanied by a response to public comments. A supplemental EIS is sometimes published after the final EIS if the agency needs to correct errors or account for new developments. In most cases, an agency action that will be analyzed through an EA will also be subject to public hearings, and the EA will be published for notice and comment.

Before NEPA, Congress enacted the National Historic Preservation Act (NHPA), and after it followed the procedural (as opposed to the substantive) requirements of the Endangered Species Act (ESA), the Regulatory Flexibility Act (Reg Flex), the Unfunded Mandates Reform Act (UMRA), the Small Business Regulatory Enforcement Fairness Act (SBREFA), and more. Statutes imposing hybrid and formal rulemaking requirements on agencies were enacted as well, which require—among other things—trial-type proceedings, replete with cross-examination of expert witnesses over days of proceedings, before agencies can take regulatory action. Each of these statutes mandates that agencies produce additional analyses, on top of what is required to satisfy the reasonableness (not “arbitrary or capricious”) requirements of the Administrative Procedure Act (APA), or to gather additional public input, even when not otherwise obligated to put out a notice of a proposed action and take public comment on it under the APA. (See the previous piece for an overview of the requirements of the APA.)

In some cases, the hostile turn consisted in Congress ratifying or amplifying lower court innovations. But even when the Supreme Court overruled those innovations, legislation cemented the hostile turn. Shifts in litigation attributed to judicial doctrine were instead largely the result of new public interest law firms armed with platoons of scientists and lawyers, litigating under these new statutes (Sabin at ch. 4, 90). By contrast, legislation has played a much smaller role in exempting agency action from traditional procedural protections.

The Hostile Turn in the States

Local governments also embraced a hostile turn in the postwar period. They did so by adopting a novel system of individualized policy actions subject to elaborate procedures, a shift that accelerated in the 1960s (Schleicher at 1676–77). Officials accomplished this in the domain of land use—a policy area where local governments dominate—“by zoning areas for uses less intense than those expected” and only allowing variances in response to individual projects, “sometimes after striking a bargain with the individual developer” (Rose at 849). These zoning rules were then paired with historical preservation laws that also made it more difficult to build (Schleicher at 1695). This shift in local land use laws particularly picked up in the 1970s, just as previously-discussed changes to federal administrative procedure were accelerating (id. at 1692).

States added additional procedures on top of these local ones. For example, states enacted statutes requiring that opponents of a change have an opportunity to stop that change via a public referendum, and others requiring that multiple levels of government actors approve the change (Sterk at 238–39). Many municipalities also layered additional community input procedures on top of these requirements for land use approvals (Schleicher at 1706). And neighbors near a proposed zoning change or variance gained the authority to challenge approvals in court, as violative of state statutes like the zoning enabling act or of the state constitution (Sterk at 240).

In the years following NEPA’s enactment in 1970 and the explosion of its judicial enforcement, states and cities also enacted equivalent bills modeled on NEPA (Dunkelman at 153). Some of these laws go further than NEPA itself, including by applying to entirely private projects (not just government action) (id.). Today, there are nineteen NEPA-esque laws that apply to state or District of Columbia actions, as well as one interstate compact (the Tahoe Regional Planning Compact).

The Ad Hoc Exceptions: A Quieter Shift

The second shift—the ad hoc exceptions—was smaller and quieter than the hostile turn, and perhaps unintended by its creators. It was born of a sense that judicial checks were unnecessary in certain domains of executive action. The two most important areas of exception are review of presidential action, and review of discretionary spending actions. As a result of judicial decisions, these domains are exempt from basic requirements of reasonableness (“arbitrary or capricious” review) that all other actions must meet under the APA. (Check out the previous piece for a longer explanation of APA reasonableness review.)

The legal details of these changes are discussed in more depth in the article. But the key point is that while their scope is smaller than the hostile turns’, their effects are real and important. For example, exempting presidential actions is part of why it is not clear that anyone could successfully challenge President Trump’s refusal to comply with the TikTok divest-or-ban statute, given the statute’s choice to vest the decision directly in the hands of the President rather than the head of an agency. The doctrine also allowed President Trump’s decisions to exempt favored businesses, but not their competitors, from tariffs essentially immune from judicial check. And while the second Trump administration has had mixed success pulling discretionary funding from, for example, infrastructure projects and universities, its failures have largely stemmed from two avoidable mistakes: invoking unconstitutional purposes for its actions and violating its own regulations in its actions. (The second Trump administration, to say the least, is not the only administration that has sought to exploit these loopholes: the same discretionary spending exception was at issue when President Obama implemented a component of the Affordable Care Act.) It remains to be seen if the Supreme Court will ratify such decisions. Regardless, one can expect that this administration, and those that follow it, will more carefully avoid invoking unconstitutional purposes for action and update regulations to more effectively exploit these loopholes. (The second Trump administration has already begun this work.)

Why Does This Matter?

To the extent that anyone thinks about hostile turn statutes, like NEPA, it generally occurs in discussions of “permitting” (an amorphous term with no definite meaning, and despite the fact that NEPA does not involve the issuance of any “permits,” per se). As previously discussed, NEPA—like other hostile turn procedural statutes—imposes certain additional analytic and public input obligations on agencies, in addition to those imposed by the APA. The same is true of other statutes mentioned in “permitting” discussions, like NHPA and ESA. These statutes attract attention because of their effects on the physical world. But a host of other statutes—hybrid rulemaking requirements, Reg Flex, SBREFA, etc.—also impose additional procedural obligations on agencies, albeit more often in the upstream domain of rulemaking than in individual infrastructure projects.

Yet constraints on rulemaking end up affecting infrastructure projects, because rulemaking is a critical way that agencies structure their non-rulemaking activities (known as “adjudications” under the APA). A rulemaking can make adjudicative approvals ministerial, allow many adjudications that previously would have been handled serially to be bundled together, or make a number of other changes to the adjudicatory process. For a more concrete example, consider that perhaps the Biden administration’s most important action to facilitate energy transmission was done through a rulemaking that altered adjudicatory processes. Accordingly, it would be a mistake to assume that rulemaking procedures are irrelevant to problems in any domain where agencies act through adjudications; burdens on rulemaking constrain agencies in their ability to reform adjudicative processes. The hostile turn itself burdened both rulemakings and adjudications—sometimes together, and sometimes in isolation—and the reverse is true for the ad hoc exceptions.

So, while the point of this piece has largely been to lay out what the hostile turn and the ad hoc exceptions are, my hope is that it also clarifies one key point. Much as those who battled and compromised to enact the APA (as discussed in the previous piece) understood the suite of issues that they were debating—the predicate steps that the government has to take before exercising its powers—to be issues of administrative procedure, it would be helpful to recognize the same today. True, the changes of the hostile turn and the ad hoc exceptions are littered across dozens of statutes across the U.S. Code, layered on top of an APA in partial and scattershot fashion. But those concerned with state capacity and abundance, as well as those concerned with autocratic backsliding and abuses of power, would do well to understand that they are focused on the same laws: administrative procedures, as they exist in the wake of the hostile turn and the ad hoc exceptions.

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Sources Cited

Mark J. Dunkelman, Why Nothing Works: Who Killed Progress—and How to Bring it Back (2025)

Carol M. Rose, Planning and Dealing: Piecemeal Land Controls As Problem of Local Legitimacy, 71 Cal. L. Rev. 837 (1983)

Paul Sabin, Public Citizens: The Attack on Big Government and the Remaking of American Liberalism (2021)

Reuel E. Schiller, Rulemaking’s Promise: Administrative Law and Legal Culture in the 1960s and 1970s, 53 Admin. L. Rev. 1139 (2001)

David Schleicher, City Unplanning, 122 Yale L. J. 1670 (2013)

Stewart E. Sterk, Structural Obstacles to the Settlement of Land Use Disputes, 91 B.U. L. Rev. 227 (2011)

In the first piece of this series discussing the ideas in my article, I described how administrative procedure gone wrong has both stymied abundance and facilitated autocracy. In the second piece of this series, I discussed the misapprehension that a more unconstrained executive is always a more powerful executive.

For those who are unfamiliar with the basics of administrative procedure, this third piece aims to provide some useful background information. I argue that the United States has had three systems of federal administrative procedure: a two-track system lasting from the Founding to the Gilded Age, a system from the late 1800s to the 1960s that would be codified in the APA, and the third system that was constructed beginning in the 1960s and that we still live in today. This piece covers the first two of these systems: the development of federal administrative procedure from the Founding to the enactment of the Administrative Procedure Act of 1946.

Even for those who already know that history, my hope is that it helps to illustrate how previous regimes of administrative procedure grappled with the tension between inhibiting corrupt, autocratic, or unreasonable government action without inhibiting—and ideally abetting—effective governance. The failure of the first two eras of administrative procedure has lessons for those of us who wish to reform the third.

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The Two-Track System: Administrative Procedure from the Founding to the Gilded Age

The failures caused by both autocratic and abusive government, as well as overly constrained and debilitated government, were not abstract for the Founders. Their generation had experienced both the tyranny of the British in the lead-up to the Revolutionary War, and the utter failure of excessively constrained governance under the too-weak Articles of Confederation. The Founders, “who had experience in colonial affairs, and who had suffered under the yoke of British administrative practices, were hardly naïve about the need to control government as well as empower it” (Mashaw at 38).

It is commonly asserted that, following the failures of British rule and the Articles of Confederation, Congress in the early years of the United States micromanaged the details of administration with little room left for executive or judicial judgment (id. at 44–46). But this is a myth. As is common today, statutes varied greatly in their level of generality and delegation. For an example of how sweeping early delegations could be, consider that in 1789, Congress passed a one-sentence statute providing that Revolutionary War pensions should be paid “to the invalids who were wounded and disabled during the late war . . . under such regulations as the President of the United States may direct” (An Act Providing for the Payment of the Invalid Pensioners of the United States, ch. 24, § 1, 1 Stat. 95, 95 (1789)).

And while it is often asserted that federal regulatory agencies did not exist prior to the Interstate Commerce Commission’s creation in 1887 (see, e.g., Fallon at 992), this is misleading. “From the earliest days of the Republic, Congress delegated broad authority to administrators, armed them with extrajudicial coercive powers, created systems of administrative adjudication, and specifically authorized administrative rulemaking” (Mashaw at 5). From early on, then, federal administrative law had to grapple with grants of authority to federal agencies that concerned important topics and required the exercise of substantial discretion (and gave rise to the temptation to abuse the powers granted).

To deal with this, early federal authorities continued to apply administrative law as it was known at English common law and in the colonies: the “law of officers” (id. at 63). This amounted to a two-track system (id. at 24).

The first track allowed for administrative action to be reviewed, albeit indirectly, by bringing a common law action—tort, contract, property, etc.—against a federal officer. The court would review whether the officer had acted legally and reasonably under the circumstances without any deference for the government actor (i.e., “de novo”). Accordingly, if an officer took any illegal action, they were personally liable for any harm done: for example, “without a valid law to justify it, tax collection . . . was simply a trespass” (Donahue at 1911). To us today, this is an extreme doctrine: “all officers, from the President of the United States, downwards . . . if they should overstep the limits of their official authority . . . would be liable to a civil or criminal prosecution, in the same manner as a private citizen” (id. at 1912). There were almost no immunities from suit: “the U.S. Supreme Court held a naval officer liable for implementing unlawful orders because ‘the instructions cannot . . . legalize an act’” (id. at 1920). And to ensure that lack of funds did not render an officer judgment-proof, Congress often layered requirements that officers post bonds or sureties into statutes (Mashaw at 62). Further, “qui tam” suits allowed anyone to bring suit and profit if a federal officer unlawfully withheld funds (id.).

The second track allowed for direct review of administrative actions through writs of mandamus seeking injunctive relief (that is, orders that the officer do something or refrain from doing something) (id. at 3). An important difference between the “law of officers” in England and federal administrative procedure in the United States was the scope of this mandamus relief. In England, as well as in many states, mandamus jurisdiction had been widened beyond cases where officers had no discretion whatsoever. “As early as 1758” in England, “Lord Mansfield had” ruled that mandamus was available “if it appeared to the Court . . . that [a Justice of the Peace’s] conduct was influenced by partial, oppressive, corrupt, or arbitrary views instead of exercising a fair and candid discretion” (id. at 211; see also Mechanick at 486, 490–94). But federal courts in the United States resisted this broader conception of mandamus as a vehicle to review the reasonableness of the discretionary actions of officers for some time, restricting mandamus to cases where an officer had absolutely no discretion (Mashaw at 212).

The result was that, from the Founding through at least the Jacksonian era, federal administration see-sawed between a timid and narrow form of mandamus review (if no common law action could be brought) and a juristocratic and aggressive second-guessing form of review (if common law actions were available).

How the Two Track System Shaped and Misshaped Government

Governments always shape their behavior in the shadow of the law; the Founding era was no exception. Supervisors, being on the hook financially for the actions of their subordinates, were often empowered by statutes to sue their own subordinates to collect a bond in the event that the subordinate’s action cost the supervisor (Mashaw at 62). Needless to say, this led to a form of governance that placed far more individual responsibility for assessing the legality of action in each officer, a notion foreign to our more hierarchical understanding today (Donahue at 1893).

In this era, there were no procedural restrictions on how agencies adjudicated cases or promulgated rules (Mashaw at 84). But congressional oversight pressure led to increasing requests (or statutory mandates) for agencies to provide reports on agency activity; that pressure, in turn, led agencies to forms of exercising power that reflected “formality, recordkeeping, and caution” (id. at 104). For example, in the middle of the nineteenth century the Board of Supervising Inspectors (an early steamboat safety agency) provided explanations of the basis and purpose of any new rule or amendment it made to a prior rule; it did so in preambles to its regulations as well as reports to the Secretary of the Treasury (id. at 203). Attentive agencies also sought expert input before regulating, even in this era. Returning to the Board of Supervising Inspectors, it “set[] aside some time at its annual meeting to hear orally from petitioners” and would “sometimes invite[] outsiders with special interests or competence to meet with the Board concerning particular issues” (id.). These were not just meetings with special interests—like steamboat transportation firms—but also meetings with professors, for example, to discuss new research shedding light on how to better protect safety valves from rust damage.

The problem was the way that the two-track system failed to function as the Jacksonian era shifted into the Gilded Age, and more and more government action fell outside of the common law track. Mostly, this was because the federal government increasingly engaged in “benefits provision, regulation, and licensing,” which common law actions did not easily apply to (Mashaw at 24).1 More generally, the fact that—depending on the nature of a legal claim—officers were free to act without judicial check when exercising discretion (if only mandamus was available) or were subject to “de novo second-guessing of administrative action” through common law actions led governments to shift authorities outside of the scope of the common law.

Consider the case Rees v. Watertown (86 U.S. 107 (1873)), where a plaintiff successfully won money damages against the city of Watertown, and secured a writ of mandamus compelling the members of its city council to levy a tax in order to pay those money damages. Before Rees could get the writ served on the city council, a majority of its members resigned. Rees then got another writ. And a majority of the council resigned again. The process played out once more. After the third attempt, Rees turned to the federal courts, but on appeal the Supreme Court continued to hold that a writ of mandamus could only run against the relevant officers (not the corporate body of the city itself), so Rees would just have to try for a fourth time. The narrowness of mandamus allowed for enormous mischief.

Yet at the same time that limits on mandamus relief were causing a great deal of trouble, “[j]udicial review in a de novo form could be enormously intrusive, indeed paralyzing” for federal officers who were at the mercy of how “nineteenth-century courts and juries” would later judge their actions (Mashaw at 308). Officers acting in good faith could be held liable for damages “because the laws they used to justify their actions were not passed according to proper procedure or were subsequently ruled unconstitutional,” or simply because they made a good faith and reasonable non-legal judgment that was nevertheless erroneous (Donahue at 1911–12).

The Collapse of the Two-Track System and the Rise of the Second System

The pressure these seemingly absurd results put on this two-track federal administrative procedure regime caused it to begin to collapse across the end of the nineteenth and beginning of the twentieth centuries. Immunity regimes for officers acting in “quasi-judicial” capacities began to emerge in the middle of the nineteenth century (id. at 1958–73). Federal statutes began to replace direct liability with administrative appeals procedures in the back half of the nineteenth century (id.). Taking a different tack, federal statutes enacted during the Civil War protected “soldiers and other government officials from liability for following presidential orders” (id. at 1962). In the early twentieth century, the Supreme Court began to allow judicial challenges to agency actions that went far beyond the traditional scope of writs of mandamus, creating a general assumption that agency actions could be reviewed for legal error (that is, whether the agency exceeded its statutory or constitutional authority) (Mashaw at 248). Following English and state law, the Supreme Court blurred the formerly clear rule that discretionary actions are not reviewable (Mechanick at at 496–97). It eventually adopted the view that even if an agency action is “in form within the delegated power, nevertheless it must be treated as not embraced therein, because the exertion of authority which is questioned has been manifested in such an unreasonable manner as to cause it, in truth, to” exceed the proper meaning of the delegated power: what we have come to know as arbitrary or capricious review (id. at 498–501).

During the early twentieth century, federal courts began to require that federal agencies produce a record to review, in order to ensure that this arbitrary or capricious review could be meaningful (id. at 501). And by 1930, Congress had amended the Radio Act of 1927 to explicitly provide for arbitrary or capricious review, codifying into a federal statute the (by then, standard) common law of federal administrative procedure (id. at 503–04). Federal statutes would also increasingly authorize damages suits against the United States over this period, gradually rendering common law actions against officers obsolete until 1946, when that process culminated with the United States assuming liability generally for damages actions in the Federal Torts Claims Act (Donahue at 1973). 1946 is also when the Administrative Procedure Act (APA) was passed, which broadly codified the new regime of administrative procedure that had emerged from these changes to the old.

The Administrative Procedure Act of 1946

Administrative procedural reform was increasingly wrapped up in a fight over the New Deal as the Franklin Delano Roosevelt administration wore on. As Roosevelt pivoted from early New Deal efforts that took an often corporatist, industrial cooperation approach to a more business-hostile effort to help “labor, tenant farmers, immigrants, and the urban poor,” conservative opposition to his administration grew (Schiller (2007) at 1564). Accordingly, “Republicans and Southern Democrats” pushed for stricter administrative procedure in order “to constrain liberal New Deal agencies” (id. at 1560). That was in part because “[e]ven after years of Roosevelt’s judicial appointments, the judiciary still contained many conservative judges,” including a majority of the Supreme Court (id. at 1613). As a result, how extensive and how strict judicial review of agency action would be (with the assumption that conservative judges would impede and delay liberal policies) became a particular sticking point in legislative debates between liberals and conservatives over administrative procedure reform (id. at 1613–14).

The legislative breakthrough that led to the Administrative Procedure Act was the increasing discomfort that liberals had with how some agencies were operating. This pressure led President Roosevelt to ask his Attorney General to form a committee advising on administrative procedure reform—composed of eight New Dealers, and four conservatives—and notably, its majority recommendations did not eschew substantial procedural constraints. The report noted that judicial review of agency action serves as a “check against excess of power and abusive exercise of power” on one hand, but also impedes and slows the “effective discharge [of] statutory obligations” (Committee at 76). So while some rulemaking should be issued promptly with limited process, other rulemaking should not be issued “until all those to be regulated have been given an opportunity to present facts and arguments to those in authority for the purpose of enlightening or persuading them towards this or that choice among many alternatives” (id. at 2, 103). And similarly, judicial review should be expected to ensure that agency action does not exceed “its lawfully delegated authority” and “check extremes of arbitrariness or incompetence”—but not to “[e]nsure ‘correct’ decisions,” as “[t]he correctness of a decision” is “a matter of judgment” (id. at 77–79). For that reason, the committee largely endorsed maintaining—and not weakening—the then-extant standard of reasonableness in judicial review of agency action, arbitrary or capricious review (id. at 78–79, 81–83, 90).

At the same time as liberal views were beginning to shift, and Roosevelt became more aligned with an explicitly liberal agenda, his court packing plan fueled voters’ fears that “the president sought the same absolute authority as the dictators who had recently achieved power in Europe” (Shepherd at 1581). This concern was serious; a 1936 poll—conducted before Roosevelt’s court packing plan, when he was at the peak of his popularity—already found that 45% of respondents were afraid that FDR’s policies could bring about a dictatorship in the United States (Kovacs (2021) at 578).

The defeat of the court packing plan and World War II agency failures led liberals even further towards compromise. Due to the war emergency, agencies had been given new powers and constraints on the exercise of their powers had been relaxed, but the result was more “abuses by the agencies” and “blunder[s]” (Shepherd at 1641–42). The public particularly loathed agency failures that caused chronic shortages and rationing of products like gasoline and clothing (id.). Both shortages and a spike in inflation was blamed on the new Office of Price Administration, which “rationed over ninety percent of consumer goods during the war” (id.). Frustration also flared when the agency issued regulations that seemed ludicrous, including one “prohibiting the sale of sliced bread” and a “40,000 word order mandating beef butchering techniques” (Schiller (2002) at 193). The War Production Board also “exercised unprecedented power” but was mismanaged, causing “endemic delay in the fulfillment of war contracts.” It also appeared “to be completely captured by the industries it was supposed to regulate,” funneling contracts exclusively to favored large corporations (id. at 194). And just as liberals grew more amenable to constraints on agencies due to wartime failures, they also feared the judiciary less, due to the rising share of Roosevelt appointed judges on the bench.

At the same time, the flip in Supreme Court jurisprudence that started in 1937 and the rising fraction of liberal judges on the bench made conservatives fear that “liberals might now use both broad judicial review and friendly courts to impede agency action that favored conservatives or business interests” during a future administration (Shepherd at 1645). Conservatives, accordingly, were increasingly open to imposing a less demanding set of administrative procedures. This allowed liberals and conservatives to compromise on a middle-ground form of judicial review that largely codified the status quo for most agencies, applying it across the board with only a few major changes. This was the APA: in 1946, after years of intense conflict, it passed by voice vote in both chambers with no dissenting votes recorded.

One genuine innovation of the APA was notice-and-comment rulemaking. In the New Deal era, rulemaking procedures were inconsistent, not only between agencies but “even within individual agencies” (Bremer at 98-99). Only a little had changed since the early days of regulating steamboats. The best agencies were praised for gathering expert input in rulemaking, yet “much of the [rulemaking] process was internal to the agency. But external consultation, through written comments and oral conferences, was increasingly common” in this period (id. at 101). The emphasis of external consultation was “targeted solicitation of views from representatives of organized industry or interest groups,” as well as “persons known to be knowledgeable about the relevant subject matter” (id. at 104). Yet because this process was ad hoc and discretionary, there was a concern in this era that “the consultative process was too closed” and captured, and that it did not do a good enough job “informing the agency’s expert judgment by giving the agency access to information it might not otherwise possess” (id. at 108, 116).

The APA’s solution was notice and comment. Agencies had to publish a “notice of proposed rule making . . . in the Federal Register” that included a “reference to the legal authority under which the rule is proposed” and “either the terms or substance of the proposed rule or a description of the subjects and issues involved” (5 U.S.C. § 553(b)). This notice had to be accompanied by “an opportunity” for members of the public to submit “written data, views, or arguments” about the proposed rule (id. § 553(c)). Following this public comment process, the agency would have to have the final rule accompanied by “a concise general statement of” the rule’s “basis and purpose” (id.) As the Senate committee report noted, this language “required agencies to ‘analyze and consider all relevant matter presented’ and ‘explain the actual basis and objectives of the rule’ ‘with reasonable fullness’” (Kovacs (2018) at 529).

Apart from notice and comment—which matched no agency’s practices, although it was inspired by many—the APA largely codified existing judicial doctrine and agency best practices at the time of its enactment. It divided rulemaking from adjudication, defining the latter as a residual category (5 U.S.C. § 551(4)–(7)). It provided different procedures for informal and formal versions of each type of action, with little process for informal adjudication and notice-and-comment process for informal rulemaking, along with more onerous trial-type procedures for formal versions of adjudication and rulemaking (id. § 553, 556, 557). And it provided that a category of rules would not be subject to the notice-and-comment process, which we today call guidance: “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” (§ 553(b)(A)). The APA also cemented the shift in mandamus by allowing “any person suffering legal wrong because of agency action” to bring suit (id. § 702), and directing courts to “set aside” any action that was sufficiently unreasonable or exceeded the agencies’ statutory or constitutional grant of authority (id. § 706). It also separated the functions of those in agencies who would investigate and prosecute lawbreaking from those who would adjudicate it (id. § 557).

The APA Survives, but the Second System Ends

The APA was broadly successful, yet the second system would be abandoned in reaction to deep problems in the post-World War II period. If that seems odd, recall how serious those problems were. As Paul Sabin put it:

The government, often in partnership with industry and labor, was testing nuclear weapons in the atmosphere, spraying millions of tons of pesticides across the land, and plowing highways through urban neighborhoods. The government was allowing strip mines to ravage the Appalachian Mountains and leaving coal miners to suffer from black lung disease with little compensation. Government policies were permitting oil refineries to freely dump toxic emissions into low-income communities of color, and letting oil spills pollute the nation’s waterways and coasts.2

Distrust of government also grew as the civil rights struggle intensified and the American public became aware of lies in the official government narrative around the Vietnam War (Sabin at 48–53).

Were the APA’s shortcomings or inadequacies to blame for these problems? As I discuss in my article, evidence indicates that it was not.3 But as the next piece in this series will detail, a group of reformers eventually organized around the idea that solutions could be found in a new form of administrative procedure. One that layered on top of the APA a host of more exacting requirements that would ensure better government action.

Learning from History

The next post will dive into how this second era of administrative procedure, which began developing as the first era collapsed towards the end of the nineteenth century and fully realized with the enactment of the APA in 1946, was supplanted by a third era characterized by a hostile turn against state power paired with some narrow ad hoc exceptions to otherwise binding procedural constraints. But before turning to that subject, it should be emphasized that there is something to be learned from each of the first two eras of federal administrative procedure.

The breakdown of the first era illustrates that bad types of constraints will cause problems that eventually impair governance. In particular, constraints that vary with the type of suit brought, rather than the type of government action regulated, are liable to fail under stress.

The breakdown of the second era is a reminder that the connection between the fact of government failure and the causes of government failure are often unclear. As Hegel put it, “the owl of Minerva spreads its wings only with the falling of the dusk.” A system of government powers and constraints is only as strong as its weakest link, and depending on the political moment, a strong link may become the casualty of a weak one.

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Sources Cited

Emily S. Bremer, The Undemocratic Roots of Agency Rulemaking, 108 Cornell L. Rev. 69 (2022)

Nathaniel Donahue, Officers at Common Law, 135 Yale L. J. (forthcoming 2026)

Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915 (1988)

Kathryn E. Kovacs, Avoiding Authoritarianism in the Administrative Procedure Act, 28 Geo. Mason L. Rev. 573, 578 (2021)

Kathryn E. Kovacs, Rules About Rulemaking and the Rise of the Unitary Executive, 70 Admin. L. Rev. 515 (2018)

Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of Administrative Law (2012)

Alexander Mechanick, The Interpretive Foundations of Arbitrary or Capricious Review, 111 Ky. L.J. 477 (2023)

Paul Sabin, Public Citizens: The Attack on Big Government and the Remaking of American Liberalism (2021)

Reuel E. Schiller, Reining in the Administrative State: World War II and the Decline of Expert Administration, in Total War and the Law; The American Home Front in World War II (Victor Jew & Daniel R. Ernst eds., 2002)

Reuel E. Schiller, The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law, 106 Mich. L. Rev. 399, 402 (2007)

George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557, 1568 (1996)

United States Attorney General’s Committee on Administrative Procedure, Final Report, S. Doc. No. 8, 77th Cong., 1st Sess. (1941)

MAGA supporters often argue that President Trump’s willingness to flout legal, moral, and customary rules enhances his power. As Donald Trump Jr. recently put it, “what’s good about my father, and what’s unique about my father, is you don’t know what he’s going to do.” Trump’s willingness to bully members of Congress and allied countries, as well as to disregard legal constraints and abuse power—for example, by threatening federal funding and contracts for universities and law firms—they reason, enhances his power. They argue that President Trump has shown how much more a President and political movement can achieve if it has the stomach to break the rules, and to break prior commitments without fear.

But a more unconstrained President is not an inevitably more powerful President.

President Trump has already illustrated this. His inconsistency and refusal to heed constraints has limited his ability—despite Republican control of Congress—to craft durable legislative victories, rally allies to join military action, and even durably shift the behavior of the universities or law firms he targets.

In the first piece of this series, each piece of which will summarize one of the ideas of my article, I described how administrative procedure gone wrong has both stymied abundance and facilitated autocracy. In many cases, that reflects excessive constraints that impede government power and insufficient ones that fail to check abuses of power. In later pieces, I will discuss each of these topics in greater depth. But in this piece, I argue for an important insight from institutional economics: depending on the context, constraints on government action can limit its power or increase its power.

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One way to understand this point is by looking back in time at a particularly clear case study. Specifically, North & Weingast (1989) showed how England, by constraining the power of the Crown, became powerful enough to win wars with France—setting the stage for England to become the most prosperous and powerful country in the world.1

Party Like It’s 1688

States in early modern Europe were frequently at war. The stakes of war, particularly in this era, were high. (They not infrequently ended with a monarch’s neck separated from their head.) So any sovereign at war was incentivized to take even the most costly actions if those actions would help secure wartime victory. For example, monarchs would commonly repudiate royal debts and seize private property in order to gather resources needed to win wars. But if the king inevitably confiscates property during a war, no one will bother to invest in the first place. Economic growth, in other words, was stymied by the lack of a credible commitment to not wield powers in certain ways that were in the short-term interest of the current ruler.

Such was the case in early 17th century England. As far back as 1215, the Magna Carta had restricted the Crown’s ability to raise certain taxes without the support of bishops, earls, and barons—what would become Parliament. Parliament, representing the interest of property owners, would generally seek to extract concessions from the Crown before agreeing to be taxed. But by the 1600s, Stuart monarchs had essentially seized control of public finance by funding regular state expenses without relying on taxes that required parliamentary assent, such as customs fees (tariffs, essentially).

The Stuarts had inherited large debts from Queen Elizabeth’s war with Spain, and increasingly spent more than they collected from standard sources of revenue in the 1600s; they had to find other sources to cover the difference. For example, the Crown secured loans through both voluntary and involuntary means (“forced loans”). Repayment was often incomplete and delayed:

In the forced loan of 1604/5 the Crown borrowed £111,891, nominally for one year; “although ... ultimately repaid, £20,363 ... was still due as late as December 1609.”

As time progressed, these “loans” began to approximate taxes; yet because they were stylized as loans, the Crown could impose them without Parliament’s support. The Crown also sold monopolies, peerages, hereditary titles, and exemptions from generally-binding laws; seized goods while paying below market value; and sometimes just seized property outright.

Both Parliament and the common law courts attempted to thwart the Crown’s efforts. For example, the 1624 Statute of Monopolies prohibited granting monopolies to existing businesses in exchange for revenue; indeed, courts had barred the Crown’s use of monopolies as revenue raisers at common law as far back as 1601. But the Crown was able to evade these restrictions by relying on the royal prerogative (essentially, the ability to issue legislative edicts without Parliament), the suspension and dispensation powers (granting exemptions from otherwise generally-binding laws), and enforcement in the prerogative courts (avoiding the common law court system). The ability of the Crown to remove judges who ruled against the Crown cemented the efficacy of this system.

Eventually, the Crown’s oppressive rule triggered the English Civil War and Glorious Revolution. Following the Glorious Revolution, parliamentary supremacy was established, with a special emphasis on control over fiscal matters. The royal prerogative powers were subordinated to statutes and the common law, and the prerogative courts were abolished. Judges could only be removed if convicted of a criminal offense, or by both houses of Parliament.

Punishments for undermining these changes were credible, and the changes were therefore durable. After all, the previous king had been removed from power, a clear threat to any new ruler. And going forward, increased economic power outside the Crown increased Parliament’s political power. Yet Parliament still relied on the Crown for the expenditure of funds and implementation of government programs, while Parliament’s plural composition created natural internal checks on any one faction’s ability to seize power. More importantly, both sides had reasons to stick to the bargain because each side gained from these changes. Parliament and elites external to the Crown gained economically and politically, by limiting the risk that their property would be seized. But the Crown also gained something critical: massive increases in fiscal capacity that allowed King William to launch, and win, a major war against France (1689–97).

In summary: a politically independent judiciary meant that previously ignorable constraints on royal power became credible. The Crown could no longer renege on its agreements; but losing this particular power made the Crown more powerful in aggregate, particularly by increasing its fiscal capacity. For example, these constraints allowed the Crown to massively expand debt financing of expenditures:

And even as the amount that the government could raise through debt financing soared, certainty that loans would be repaid meant that the cost of financing that debt plummeted:

Obviously, the credible commitment of the English government to repay its debts was not the only reason for this boom in fiscal capacity. That commitment was part of a larger commitment to protect property rights, which in turn supported economic growth (and, in turn, increased the resources available to finance government expenditures). But the key point is that by tying its own hands, the English Crown became far more capable of pursuing its goals (for example, winning wars with France) than when it was more unconstrained.

Administrative Procedure As a Solution to a Commitment Problem

North and Weingast were by no means the only ones to recognize that constraints on state power can expand state capacity by solving a commitment problem.2 Democracy, with regular competitive elections for political office, is itself a solution to a fundamental commitment problem. Rights protections are also a solution to a commitment problem. Likewise, procedural constraints on the exercise of government power are another solution to the same general commitment problem. That is, those who set the rules for how power is exercised know that control of that power will rotate, and therefore can make themselves better off by locking in constraints that are more valuable to them when their opponents are in power than they are costly while they (or their allies) are in power.

While democracy is an incredibly important technology for both improving government capacity and reducing the scope of abuse of power, alone it creates suboptimally weak incentives. For example, state legislative electoral outcomes are remarkably unresponsive to voters’ opinions—even on salient issues. And even in a presidential election, it is likely that only the most salient policies and scandals will have any noticeable electoral effect. Rights protections and procedural constraints can improve upon raw majoritarian democracy by improving the incentives of those who hold office. If the costs of the procedures are lower than the benefits that flow from those improved incentives, society ends up better off with them in place.

Governments are People Too, My Friend

While English economic development and commitment problems from hundreds of years ago may be interesting in themselves, the basic point here remains common sense today.

Say you have two colleagues. The first is always honest and keeps her promises. Even when it is no longer to her short-term advantage to follow-through, she stands by her commitments. She is ethical, and is also forthright about her mistakes, even when she does not have to be. The second is totally unconstrained; promises are no more than loose predictions to her. She will break a promise as soon as it is to her short-term advantage for her to do so. She cares only for pursuing her own good, and will only share information when it is to her advantage to do so.

Obviously, the first colleague will incur some costs from her honesty and commitments. But she also gains many benefits. Say each colleague comes to you seeking to work together on a project. Which of the two would you want to partner with? Say each one is looking to hire a new team in your office. Which of the two would you want to work for? Say each one applies for a promotion. Which of the two would you want to promote? Say each one comes to you asking for a favor, and promising to pay it back in return. Which one of the two would you want to trade favors with? Even without external enforcement mechanisms, someone who is credible in their commitments can get more done—in the long run—than someone who is not trustworthy.3

Why This Matters

The rest of this series will dive into big questions surrounding optimal administrative procedures, and how they can both reduce autocratic abuses of power and enhance effective governance. But it is important to not lose sight of how credible commitments through procedures matter to the everyday business of government. Consider this recent discussion from the Substack Factory Settings, about how the CHIPS office’s inability to tie their own hands more completely made it more difficult to do effective grantmaking:

Consistent with other federal grant agreements, our terms provided that CHIPS awards would be administered at “the discretion of the government.” But that language — which implied broad latitude — made some of our applicants very uneasy. In the event of a dispute under the contract, they wanted courts to hold the government to a “reasonableness” standard typical for commercial agreements.

But we couldn’t accommodate that request. The challenge was that the Administrative Procedure Act gives courts the ability to invalidate certain actions by government agencies (including withholding grants) if the court determines that they are “arbitrary and capricious.” Our legal team analyzed the APA and determined that it applied to our awards and that we didn’t have the authority to bind the government to a more constrained standard of review beyond the “arbitrary and capricious” test of the APA.

The standard makes sense in many traditional government contexts where agencies make decisions based on policy judgment. But industrial policy programs blur the line between typical government administration and commercial partnership. When the government is acting as a commercial counterparty — negotiating terms, making milestone payments, and enforcing performance requirements similar to a private investor — companies expect the legal protections typical of commercial relationships. Under the “arbitrary and capricious” standard, even if the government made a questionable interpretation of the agreement that a court might consider unreasonable in a commercial context, companies would have little recourse as long as that interpretation was within the bounds of the APA. This concern was amplified by the political reality that “the government” might mean entirely different decision-makers after an election. Companies worried they could be locked into long-term agreements with billions of dollars at stake, yet have limited legal recourse against adverse interpretations by future administrations.

For future programs, Congress should consider specifying that agencies may commit to a more constrained standard of review than the APA provides in their commercial agreements.

Civil society reacts more strongly to policies that it anticipates to be more durable; durability is often downstream of constraint. Sometimes, by binding its own hands too tightly, the government becomes dysfunctional, and its capacity degrades. Sometimes, by leaving its hands too free, the government becomes untrustworthy, and its capacity again degrades. But by binding its own hands just enough—and in just the right ways—the government’s commitments become credible and society anticipates it to act more wisely, maximizing its own capacity in the present.

Policy discourse in the United States today has a split personality. Many condemn how procedural rules thwart not only efforts to build—housing, energy, and more—but more generally keep presidents from achieving their policy ambitions and worsen our “vetocracy.” Yet others lament how presidents are left too free to pursue their policy aims lawlessly or abusively. These concerns are often raised by the same commentators. Even though these discourses are largely about the same topic—the administrative procedures that constrain government action and govern judicial challenges to it—the two have proceeded almost entirely in parallel. The result is a bizarre discourse superposition, where the executive branch is simultaneously excessively and insufficiently constrained.

How can the presidency be simultaneously so powerful that it risks lapsing into autocracy and yet still be so sclerotic that it cannot effectuate its top policy priorities? As I explain in a forthcoming article, the answer is that the right administrative procedures are already in place—they’re just distributed unequally.1

First, executive sclerosis. As explored in popular works like Abundance and academic ones like Adversarial Legalism, the executive branch has been increasingly hamstrung by excessive procedure and litigation alleging procedural violations. These problems are most visible when the executive tries to make changes in the physical world:

• Offshore wind farms were stalled for more than a decade by lawsuits alleging trivial violations of procedural statutes, brought by a coalition of Kennedys and Kochs.

• President Obama sought to fund “shovel-ready” projects in 2009, only to learn that “there’s no such thing as shovel-ready projects” because of the procedural hoops that all federal projects must jump through.

• The first Trump administration’s efforts to build oil and gas pipelines led to few actually getting built because their (admittedly sloppy) work was thrown out in court for violating procedural requirements.

• Prescribed burns that are delayed by procedural requirements keep causing more wildfires in the interim.

• California high-speed rail was approved in 2008, yet a tangle of procedural requirements have led the program to produce no rideable trains to date.

Such problems are by no means exclusive to the physical world. Impediments to rulemaking, adjudication, and other forms of agency action have thwarted many presidential ambitions; just ask any veteran of the Trump or Biden administrations.

At the same time, there is increasing agreement that presidential power poses an autocratic threat.2 The executive is sometimes underconstrained by procedure, leaving it free to act in abusive and illegal ways without judicial check. For example:

• Legislation that was unanimously upheld by the Supreme Court required the ownership of TikTok to divest or have the app be banned. Yet the Trump administration—and the Biden administration before it—disregarded this law without consequence.

• The Trump administration pulled funds from the Second Avenue subway and Hudson River Tunnel projects in New York in an act of political retribution, adding months of expense and delay to these important projects.

• The Trump administration cancelled renewable energy projects like Esmeralda 7, which would have produced enough solar power to power nearly two million homes.

• Not to mention the Trump administration’s attacks on universities, law firms, and the press.

While wildly larger in scope, much of this is not new: for example, the Obama administration also spent billions that it did not have the authority to spend.

The Hostile Turn and the ad hoc Exceptions

Procedure, when properly designed, improves policymaking and checks autocracy. After all, liberal democracy—which imposes fundamental procedural constraints on political power— generates economic prosperity and economic prosperity generates support for liberal democracy. The tragedy is that two shifts over the last 60 years have led our system of administrative procedures to become worse at both tasks.

The first shift is what I call the “hostile turn”: a series of statutory enactments, beginning in the 1960s, that wrapped the government in a straitjacket of red tape beyond the basic requirements of the Administrative Procedure Act (APA).3 There is an entire alphabet soup of statutes—NEPA, NHPA, UMRA, SBREFA, and more—that were enacted as part of this hostile turn, as well as statutory provisions that require certain trial-type proceedings or various kinds of additional actions before a rulemaking or adjudication can be completed. While the details vary, the procedures of the hostile turn generally require (on top of the APA’s requirements) either additional analysis (beyond the APA’s requirement to justify the merits of the action) or additional public input (beyond the cases where the APA requires public comment). Proponents of these laws assumed that requiring ever-more community input and bespoke analyses would produce better policymaking and prevent corruption. But that assumption was wrong.

The procedures of the hostile turn made it enormously more costly and time-consuming for the government to do anything. Again, it is easiest to see this when studying where the government needs to make changes to the physical world. The evidence indicates that these hostile turn procedures led to the cost of interstate highway construction to spike. Building new highway lanes (triggering procedural constraints) has gotten much more expensive than input costs, whereas repaving highway lanes has not. More generally, evidence keeps piling up that construction productivity not only stopped improving around 1970: it started going backwards. That makes sense: the hostile turn imposed high costs and diseconomies of scale on construction firms.

Source: https://www.nber.org/digest/202502/stagnation-us-construction-productivity

These effects in the physical world are just the tip of the iceberg. As noted previously, administrative procedure affects far more than infrastructure projects and the construction industry. Indeed, it touches nearly everything that the government does. There is no reason to think that every other action that agencies take—affecting all sectors of the economy, and a great deal of non-economic activity as well—is not similarly impacted. Consider the FTC’s “click-to-cancel” rule, which took over five years to go through an advanced notice of proposed rulemaking, a proposed rule, three oral hearings (replete with supplemental briefings and cross-examination of witnesses), and a final rule accompanied by a benefit-cost analysis—before being judicially vacated for failure to comply with an early-stage analytical procedural requirement. Quantitative evidence in the domains of physical infrastructure and construction is merely more readily available than in the domains of economic or social regulation.

Not only are the costs of the hostile turn high; the benefits of the hostile turn are tiny,4 doing little to produce better policy or prevent corruption.5 It is the APA, not the procedures of the hostile turn, that ensures that harmed parties can challenge government action that is unconstitutional, exceeds the bounds of statutory authority, or is arbitrary or capricious. These constraints have enabled the bulk of judicial checks on the Trump administration’s abuses of power, as well as those of its predecessors.

The Trump administration’s effort to stop construction of a wind farm that was already 80% complete? Ruled to be “the height of arbitrary and capricious action,” and swiftly blocked just one month later.6 Its attempt to block New York City’s congestion pricing scheme? A judge held that it “exemplifies arbitrary and capricious” action, and vacated it. The administration’s cap on indirect cost reimbursement rates for research grants? Blocked in an APA suit. The attempted removal of Guatemalan children at risk of being killed or trafficked in their home country? Challengers forgot to cite the APA, but that was legally irrelevant, and they won before a Trump-appointed judge anyway.

Yet as the hostile turn has taken shape, a second—and largely overlooked—shift has also taken place. I call it the “ad hoc exceptions”: some little-known changes to the law (primarily driven by the Supreme Court) that have left gaping holes in the APA’s protections, particularly in the areas of presidential action and discretionary spending. Wrongly believing that constraints in these domains were unnecessary and counterproductive, the judiciary created a situation in which whole domains of lawless and autocratic actions became unconstrained by any procedural rules.

First, presidential action. In 1992 the Supreme Court (“out of respect for … the President”) ruled that the President was not subject to the APA. That might not have mattered much, if there were other effective ways to sue the President for violating the law, as the Supreme Court hinted in 1994. But the Supreme Court has continued to narrow these non-APA (“ultra vires”) challenges, leaving presidents free to use and abuse an enormous range of statutory authorities largely free from any judicial check; for example, exempting politically connected firms from tariffs.

Second, courts used to check abuses related to discretionary spending, just like other types of government action. But the Supreme Court went the other way in 1993, arguing that Congress was better positioned to check lawless or unreasonable executive action in this domain than the courts. Without the ability to check arbitrary actions relating to discretionary spending—and with a Congress incentivized to not check the President—an unrestrained executive can leverage grantmaking and related powers to abusive or autocratic ends.

We Can Do Better

Many dysfunctions that the “abundance” movement is focused on are downstream of excessive and low-value procedures. But the solution is not a government free of all constraints, bristling with the potential to wield power in autocratic and corrupt fashion. Rather, our current regime of administrative procedure can be improved in ways that would both enhance the government’s ability to realize its policy ambitions and better constrain autocratic abuses of power. We can and should replace bad procedures with better ones.

Too often, those correctly attacking the “procedure fetish“ have been exclusively negative, providing reasons to relax or remove procedural constraints. But to ask if there is “too much” or “too little” procedure is the wrong question. The benefits and costs of any particular procedural constraint depend on the others that exist alongside it. The question is what system of procedure is collectively optimal. And when stepping back to design that system, the evidence is clear that we do not have to choose between a government that can accomplish its goals and a government that is not autocratic.

How to Fix Administrative Procedure

Fortunately, both the left and right want the government to effectively implement valuable policies while constraining abusive or lawless action. (They just emphasize the former when they hold the presidency, and the latter when they do not.)

Three reforms would make progress towards both goals:

First, the hostile turn procedures generally force agencies to receive some form of special input, or to conduct some kind of bespoke study, before acting—on top of the public comment and reasoned action requirements of the APA. These additional procedures do almost nothing to stop corrupt or autocratic action, but cost agencies enormous amounts of time and money. That is a bad deal: they should be repealed immediately.

Of course, it is worth putting extra requirements on the government before it takes certain kinds of actions, because of their importance. Fortunately, with more low-value procedures swept away, there would be room to require that a small set of particularly important decisions be based on a rigorous benefit-cost analysis. Unlike special input or bespoke study requirements, which lack any strong evidence of efficacy, there is some rigorous evidence that benefit-cost analyses help to reduce cognitive and partisan biases.

Second, there have been proposals from some in the abundance movement to cut through the procedural thicket by simply making those procedures judicially unenforceable. This is a bad idea. Barring the courthouse doors hits all procedures equally, valuable and counterproductive alike. In instances where judicial checks have been entirely eliminated—such as the previously-discussed discretionary spending actions and presidential actions, as well as border barrier construction—there has been a great deal of poor decisionmaking and executive overreach.

That said, it is important to constrain rogue judges. Judge and forum shopping empower the most extreme judges in the country to be the limiting factor on executive action; simple reforms could end these tactics. The judicial review loopholes that administrations have exploited around spending and presidential action should be closed as well.

Third, and finally, while those in Washington, D.C. love to fixate on the federal government, state and local governments are often far more important contributors to sclerosis in the physical world that abundance proponents focus on. If state and local impediments to building national priorities are left unchecked, even an ideal set of federal reforms are not going to solve the housing crisis, bring energy prices down, or realize any high-speed rail dreams.

Fortunately, the federal government can ensure that obstruction without a valid basis is thwarted without displacing the appropriate role for state and local governments. We can learn from prior successes in solving similar problems, such as the limited preemption approach that facilitated the buildout of cell phone towers, to tackle the problems of today.

* * *

In future writing, I will dive much deeper into each part of the argument in my forthcoming article. These pieces will get into the details regarding how procedural reform can do more to create abundance and constrain autocracy; subscribe to get alerted when each comes out.

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And if you have questions or disagreements, I would be happy to address them in future pieces, so fire away!

Its name comes from Abraham Lincoln’s July 4th address to Congress in 1861, which sets out as good of a theory of the purpose of government as you will find.

“This is essentially a People’s contest. On the side of the Union, it is a struggle for maintaining in the world, that form, and substance of government, whose leading object is, to elevate the condition of men—to lift artificial weights from all shoulders—to clear the paths of laudable pursuit for all—to afford all, an unfettered start, and a fair chance, in the race of life. Yielding to partial and temporary departures, from necessity, this is the leading object of the Government for whose existence we contend.”

I anticipate the first series of posts here to focus on my recent work on reforming administrative procedure. But posts may flow on various other topics within economics, public policy, law, philosophy, and politics as they come.

Subscribe if you would like to get them in your inbox as they come out.

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