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  • Writer's picturePeter Serefine

The Administrative Procedure Act: An Unconstitutional Monster

The Administrative Procedure Act (APA) of 1946 is often hailed as a landmark legislation that sought to bring order and transparency to the federal administrative process. However, beneath the veneer of good intentions lie deep-seated constitutional violations that cast a shadow over the legitimacy of the APA and the regulatory state it has spawned. This article will explore the constitutional arguments against the APA and its far-reaching impact on individual liberties, shedding light on the unconstitutionality of administrative regulations.

1. Violation of Article I, Section 1:

Article I, Section 1 of the Constitution declares that “All legislative Powers herein granted shall be vested in a Congress of the United States.” The APA’s delegation of legislative power to agencies contradicts this constitutional provision, as agencies are granted rulemaking authority that carries the force of law, encroaching upon the exclusive domain of Congress.

2. Delegation of Legislative Authority:

The Constitution vests legislative powers exclusively in Congress, ensuring that elected representatives are accountable to the people. The APA, however, allows Congress to delegate its legislative authority to agencies, effectively enabling unelected bureaucrats to create laws that directly impact citizens. This delegation of legislative authority goes against the framers’ intent and violates the most basic principles of representative democracy.

3. The Separation of Powers Doctrine:

One of the most significant constitutional issues with the APA lies in the obvious violation of the separation of powers doctrine. The APA grants federal agencies the power to create, interpret, and enforce regulations without adequate congressional oversight. The best estimates say that 70-80 different agencies of our federal government have “law enforcement” power and/or offices. This delegation of legislative authority to unelected bureaucrats who then enforce their own pretended legislation undermines the fundamental principle of checks and balances, as established in the Constitution.

4. Lack of Accountability and Due Process:

Administrative agencies wield considerable power over citizens’ lives and livelihoods, often without providing proper avenues for recourse or due process. Administrative regulations can be cumbersome, and challenging them through the courts can be a costly and lengthy process. The lack of accountability in administrative rulemaking raises constitutional concerns about the protection of individual rights.

5. Arbitrary and Capricious Rulemaking:

The APA’s rulemaking procedures lack clear guidelines and criteria for determining what constitutes a legitimate regulation. This opens the door to arbitrary and capricious rulemaking, where agencies may enact regulations without solid justifications, leading to adverse consequences for businesses and individuals. The EPA claims to be able to regulate any body of water on your private property. The ATF thinks they have authority over a still on your property for your own private use. These are just two plain and simple examples.

6. Obvious Overreach:

The previous five points are all beside the obvious point to a constitutional originalist, very few of the agencies which grew out of the APA have constitutional authority to exist. Article I, Section 8 of the US Constitution lists 17 areas of legislative authority. The whole US Constitution grants roughly 30 powers for all three branches of the entire federal government. The Tenth Amendment says that where the Constitution is the individual states are in charge. The constitution is silent on; alcohol, tobacco, personal transportation, education, healthcare, retirement, labor unions, aviation, the environment, energy sources and production, pharmaceuticals, housing, parks, just to name a few.


While the Administrative Procedure Act was intended to streamline the administrative process and enhance transparency, it is unconstitutional on its face.

This legislation was also the gateway to the ever expanding administrative state, swaying in the winds of the different political administrations, ignoring the separation of powers, and stomping on individual liberty along the way.

The delegation of legislative authority to administrative agencies and the lack of checks and balances ignores and violates the very foundations of our constitutional system.

It is time for a robust national conversation on how to uphold the principles of limited government, individual liberties, and the rule of law without compromising the Constitution’s original intent.

Only the timeless values that our Founding Fathers envisioned for this great nation can save our republic.

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