The Hostile Turn in Administrative Procedure, and the Ad Hoc Exceptions

Government reforms that made government worse

How did it all go wrong?

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.

Ralph Nader in 1975

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.)

Newt Gingrich, who (as Speaker) helped enact UMRA and SBREFA

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.

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)