The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20036
In 1946, after ten years of study, Congress passed, and President Truman signed, the Administrative Procedure Act, a law that has been called the constitution of administrative law. During the Roosevelt Administration, many new federal agencies were created to implement FDR’s New Deal. These agencies regulated more private conduct than ever before. Congress deemed it essential to enact a statute governing how these agencies would operate, and to establish rules of conduct to protect the regulated persons and entities. U.S. Senator Pat McCarran of Nevada called the APA "a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated" by federal government agencies. During the 75 years since its enactment, the APA has been regularly invoked in litigation, as citizens challenge agency action on the grounds that the agency did not comply with APA’s requirements.
But what recourse do you have when the enforcement action against you is not being taken by a government agency, but by a private entity at the behest of the government? The government encourages “social media” companies to censor your speech. The Securities and Exchange Commission establishes a special enforcement unit to police public companies’ compliance with ESG (environment, social, governance) initiatives. The Biden Department of Labor reversed the Trump administration’s reversal of the Obama administration’s guidance that permitted fiduciaries to consider ESG in their management of certain retirement funds. In these and other areas of our lives, our activities are being governed, not by the government, but by its surrogates.
The U.S. Constitution established a national government consisting of three branches. The administrative agencies have been called a fourth branch. Now, with corporations, investment funds, and other non-government entities deputized to regulate our conduct, do we have the emergence of a “fifth branch” of government? Does this fifth branch operate free of the strictures of the APA? What recourse is available for those affected?
Our panelists will address these developments, bringing to bear their individual expertise regarding the serious issues raised by the use of regulatory surrogates and the consequences that could result from the emergence of a “fifth branch” of government.
- Opening Remarks Hon. Mike S. Lee, United States Senator, Utah
- Mr. Jonathan Berry, Partner, Boyden Gray & Associates
- Mr. Stephen Soukup, Vice President and Publisher, The Political Forum
- Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University
- Moderator: Hon. Stephen A. Vaden, U.S. Court of International Trade