Avoiding Authoritarianism in the Administrative Procedure Act

Category: Print Issues

Avoiding Authoritarianism in the Administrative Procedure Act

Kathryn E. Kovacs

Volume 28

, Issue 2

28 GEO. MASON L. REV. 573 (2021)

Introduction

In the 1930s and 1940s, while Congress deliberated how to control the exploding federal bureaucracy, authoritarian regimes grew overseas, raising the specter that the United States would follow suit. Many Americans viewed the New Deal as “dictatorial central planning” and feared that President Franklin Delano Roosevelt (“FDR”) would become the United States’ first authoritarian leader.¹ That fear shaped the Administrative Procedure Act of 1946 (“APA”).² Congress designed the APA’s constraints on agency procedure and provisions for judicial oversight to prevent agencies from becoming the tools of a dictator. Now the APA operates as the constitution for the administrative state and has earned the title “superstatute.”³ Yet seventy-five years after its enactment, the APA has failed to forestall the United States’ slide toward authoritarianism. This Article traces the APA’s anti-authoritarian lineage and begins to explore why it failed to live up to its billing.

Following the lead of many political scientists, this Article uses “authoritarianism” as an umbrella term to encompass totalitarian, fascist, dictatorial, and communist regimes.⁴ Modern liberal democracy is grounded on free and fair elections.⁵ Authoritarianism, by contrast, refers to non-democratic systems that often “rely on a mix of legitimacy and coercion.”⁶ An authoritarian government need not be totalitarian. Totalitarianism “seeks to subordinate all aspects of individual life to the authority of the state.”⁷ Authoritarianism, on the other hand, may allow individual freedoms, conduct elections, and “admit the existence of democratic institutions.”⁸ Indeed, “[e]lections are used as a tool of legitimation by virtually all regimes, given the almost universal need to claim to rule on behalf of the people.”⁹ Likewise, authoritarian governments may have “written constitutions, courts, or other rule-of-law accoutrements,” but they use those elements to maintain their power.¹⁰

Authoritarianism need not blossom overnight but can result from the attrition of democratic norms. Professor Nancy Bermeo of Oxford and Princeton Universities explains that “democratic backsliding”¹¹ may be gradual and yield governments that are “ambiguously democratic or hybrid.”¹² The “hallmark of democratic backsliding . . . is a steady accretion of power in the chief executive.”¹³ The classic coup d’état has been replaced by what Bermeo calls “executive aggrandizement,” where an elected executive uses legal channels to disassemble institutional checks on executive power and interbranch accountability.¹⁴

Despite its origin in anti-authoritarian sentiment, the APA has not prevented the United States from sliding toward authoritarianism. As this Author explained elsewhere, the United States has seen a steady rise in executive power across Democratic and Republican administrations over the past fifty years.¹⁵ Others, too, have noted the growth of authoritarianism in the United States,¹⁶ and the accretion of power to the executive branch shows no signs of slowing.¹⁷ This Article lays the foundation for understanding why the APA failed to forestall that development. In tracing the anti-authoritarian elements of the APA, this Article also informs interpretations of this superstatute and the discussions surrounding its reformation.

Part I of this Article begins with a combined history of anti-authoritarianism and administrative reform from FDR’s inauguration in 1933 to President Truman’s signing of the APA in 1946. Part II explains how the fear of authoritarianism shaped the APA. Finally, Part III explores why the APA has not prevented American democracy from backsliding into increasingly authoritarian leanings.

I. Fear of Authoritarianism in the APA’s Formative Years

A. The Early New Deal Era

Long before FDR’s inauguration in 1933, Progressives from several political parties sought to make the federal government more responsive, efficacious, and accountable by empowering the President.¹⁸ Giving the President more authority over government agencies, Progressives believed, would make those agencies more responsible.¹⁹ Republican administrations from 1921 to 1933, aided by Republican Congresses and “a Republican-dominated Supreme Court,”²⁰ designed government programs to take advantage of “presidential initiative and administrative capacity.”²¹

New Dealers inherited those Progressive ends and means. The Great Depression demanded even more effective governance, spurring New Dealers to expand presidential power even further.²² Indeed, at the start of the FDR administration, “American intellectuals were surprisingly accepting of dictatorial forms of government.”²³ During the early New Deal, “American reformers sometimes drew inspiration from fascist innovations, and admiration for fascism and fascist heroes was not taboo.”²⁴ Accordingly, FDR’s supporters pushed for “a united executive branch, President and bureaucracy bonded together with the President in the driver’s seat.”²⁵ Along with a strong executive, New Dealers endorsed deferential courts; ideally, the courts would defer to Congress, and Congress would defer to the President.²⁶

New Dealers also inherited from Progressives a vision of “an army of experts” at the President’s command.²⁷ FDR’s supporters believed that “properly trained experts could find objectively correct solutions to the myriad of social problems extant in a rapidly industrializing, increasingly fractious society.”²⁸ To them, the Great Depression represented the failure of laissez-faire government; federal agencies would have to control the economy to avoid the free market’s destruction.²⁹ Indeed, “administrative government was a scientific solution to an economic and social crisis of unparalleled proportions.”³⁰ Thus, during the New Deal, the federal government exploded with sixty new agencies created in FDR’s first sixteen months in office. From the summer of 1933 to the summer of 1936, the number of federal employees expanded by fifty percent, and federal expenditures nearly doubled.³¹

In this New Deal vision, administrators would exercise legislative, executive, and judicial power unconstrained by precedent or adversarial procedure.³² The New Deal’s opponents, on the other hand, considered this “the very antithesis of the rule of law.”³³

In May 1933, just two months after FDR’s inauguration, the American Bar Association (“ABA”) created a Special Committee on Administrative Law (“ABA Committee”) to study “the growing multiplicity of administrative tribunals and . . . the apparently irresistible tendency to delegate” rulemaking and adjudication responsibilities to those tribunals.³⁴ This Committee played a starring role in the formulation of the APA. From the beginning, the ABA Committee expressed concern about the (1) combination of functions in agencies, which it saw as a departure from separation-of-powers doctrine; (2) absence of due process in agency adjudications; and (3) lack of judicial review of agency decisions.³⁵ The ABA Committee also noted in its first report in the summer of 1933 the “[m]arked [t]endency to [c]oncentrate [a]dministrative [f]unctions . . . in the Executive,”³⁶ including the authority to promulgate rules having the force of law and to adjudicate disputes without any guarantee of judicial review.³⁷

B. The Mid-1930s

1. Growing Totalitarianism Abroad Spurred Fear at Home

As Professor Reuel Schiller documented, by the mid-1930s, American sympathy for authoritarian government as a means to combat the United States’ unprecedented economic emergency had waned³⁸: “During the three middle years of the decade totalitarianism showed its true face: the Italian invasion of Ethiopia, Stalin’s Show Trials, as well as the trio of Nazi atrocities—the Night of the Long Knives, Kristallnacht, and the passage of the Nuremberg Laws.”³⁹ Simultaneously, the growing bureaucracy in the United States seemed out of control. The New Deal had spawned “extensive, intrusive, centrally directed public bureaucracies” led by unelected and unconstrained officials.⁴⁰ Hence, a significant portion of the populace feared that authoritarianism could grow in the United States.⁴¹ In a 1936 poll, forty-five percent of respondents believed that FDR’s policies could lead to a dictatorship.⁴² Americans viewed fascism as a very real threat, both abroad and at home.⁴³ Fulfilling the Progressive vision of a unified executive branch under strong presidential leadership stoked fears that the federal government would become “nothing but an extension of the personality of the chief executive”—the very essence of fascism.⁴⁴

At the same time, growing fascism abroad made it even more important to have a responsible, effective, and accountable democracy at home to stand up to Europe’s dictators.⁴⁵ To distinguish the United States from those regimes, American intellectuals emphasized that the rule of law and constitutionalism would prevent totalitarianism from taking hold.⁴⁶ In contrast to their views of Europe’s authoritarian regimes, the intellectuals viewed America as individualistic and pluralist⁴⁷ and thus more resistant to the perils European nations faced.

2. The Brownlow Committee

FDR took several actions in the mid-1930s that fed the fear of his authoritarian tendencies. During his first term, he grew more liberal and moved away from industrialists and toward labor, immigrants, and the urban poor. At the 1936 Democratic Convention, he spoke about “reform and redistribution,”⁴⁸ which probably sounded ominous to his opponents. Also in 1936, FDR worked to reorganize the more than one hundred executive branch agencies to make them more accountable and effective.⁴⁹ He established the President’s Committee on Administrative Management—which came to be known as the Brownlow Committee after its Chair, Louis Brownlow—acknowledging that “he saw the Committee’s work as an alternative to calling a constitutional convention.”⁵⁰

In its report, which FDR transmitted to Congress on January 12, 1937,⁵¹ the Brownlow Committee embraced the Progressive Era thinking that government could be made more accountable and efficacious by empowering the executive.⁵² It proposed to give the President more tools for personnel management, budgeting, and planning, with an increased White House staff.⁵³ At the same time, the Brownlow Committee proposed adding checks on presidential power “to strike a balance between empowering the executive and preventing it from overreaching.”⁵⁴ The Committee was particularly concerned about the President treating agencies “as an extension of his personality” like the autocrats in Europe.⁵⁵ Although FDR expressly denied that he was seeking to “increase . . . the powers of the Presidency,”⁵⁶ the Brownlow Committee’s report came to be seen as an attempt to accrue dictatorial power to the President.⁵⁷

Among other proposals, the Brownlow Committee recommended eliminating the General Accounting Office and increasing the President’s involvement in the budget process.⁵⁸ The Committee also recommended extending the merit-based civil service system “upward, outward, and downward to cover practically all non-policy-determining posts.”⁵⁹ The Committee’s goal was to create a professional and highly competent federal workforce protected from political interference.⁶⁰ This would allow the President to lead the bureaucracy effectively and enable the government to attract and retain “the best talent of the Nation.”⁶¹

Both of those proposals “could be interpreted as a desire for executive supremacy.”⁶² Members of Congress “came to see meritocratic hiring as part of a larger scheme to shift power from Congress to the President and his ‘janizaries.’”⁶³ Even those who favored civil service reform expressed concerns about giving the President too much discretion to decide which positions would be “policy determining” and thus exempt from civil service protections.⁶⁴ They also objected to the idea of replacing the Civil Service Commission with a single administrator appointed by the President.⁶⁵

The Brownlow Committee’s opposition to independent agencies contributed to the view of its report as an attempt to advance authoritarian power. The Committee emphasized that the Constitution vests “the whole executive power” in “the President alone,”⁶⁶ along with the responsibility “to coordinate and manage” government agencies.⁶⁷ According to the Brownlow Committee, independent agencies contradicted the constitutional design; they constituted “a headless ‘fourth branch’ of the Government, responsible to no one” and impossible to coordinate with the policies of the peoples’ “duly elected representatives.”⁶⁸ Independent agencies also troubled the Committee because such agencies were “vested with duties of administration and policy determination . . . and at the same time they are given important judicial work.”⁶⁹

To cure these problems, the Brownlow Committee recommended separating independent agencies’ administrative and judicial functions. The former would be subject to presidential oversight; the latter would not.⁷⁰ The Committee further proposed to give the President both the power to divide the work of government among twelve executive departments and “the responsibility for the continuous administrative reorganization of the Government.”⁷¹

Opponents of the Brownlow Committee’s proposal saw it as a reflection of FDR’s “dictatorial designs” and compared it to Hitler’s invasion of Austria.⁷² Indeed, “when Congress got around to debating it in 1938, just months after Germany’s annexation of Austria, the parallels were too obvious to be ignored.”⁷³ Members of Congress argued that giving FDR continuous reorganization power would undermine Congress’s ability to check the President and take the United States “one more long step on the road to American fascism.”⁷⁴ A popular Harper’s Magazine columnist wrote that the proposals “would destroy all the effective barriers to totalitarianism.”⁷⁵ Even moderate Democrat Senator Burton Wheeler of Montana “crusaded against the plan as totalitarianism.”⁷⁶

FDR only made matters worse when he released a letter to an anonymous friend saying:

1. As you well know I am as much opposed to American Dictatorship as you are, for three simple reasons.

A: I have no inclination to be a dictator.

B: I have none of the qualifications which would make me a successful dictator.

C: I have too much historical background and too much knowledge of existing dictatorships to make me desire any form of dictatorship for a democracy like the United States of America.⁷⁷

As Professor James Patterson observes, “[t]his remarkable statement, so unnecessary and so plaintive, revealed that the charges of dictatorship had not fallen upon deaf ears.”⁷⁸

Initially, Congress rejected the Brownlow Committee’s proposals, but a year later it passed the Reorganization Act of 1939, giving FDR some of the authority he sought.⁷⁹ The Act allowed the President to prepare plans to reorganize the executive branch, which would go into effect sixty days after the President’s submission to Congress unless vetoed by a concurrent resolution.⁸⁰ The Act exempted independent agencies from presidential reorganization, along with the Civil Service Commission and the General Accounting Office,⁸¹ thus rejecting the Brownlow Committee’s recommendations on those points.⁸²

Three weeks later, FDR transmitted his first reorganization plan to Congress.⁸³ That plan created the Executive Office of the President, which political scientist Stephen Skowronek dubbed “the institutional capstone of the progressive presidency.”⁸⁴ In Skowronek’s view, the Executive Office of the President gave the President “new resources for policy development and administrative oversight,” but it “was less an instrument of unitary command and control than an instrument of institutional coordination and collective action.”⁸⁵ Legal historian Noah Rosenblum observed that the Executive Office of the President “lay the foundation for executive administrative supremacy.”⁸⁶

3. FDR’s Court-Packing Plan

On February 5, 1937, a few weeks after FDR transmitted the Brownlow Committee report to Congress and well before the passage of the Reorganization Act, FDR sent Congress a bill that would, among other things, increase the number of justices on the Supreme Court.⁸⁷ The so-called “Court-packing plan” exacerbated the fear of FDR’s authoritarian tendencies.⁸⁸ “To some, Roosevelt appeared intoxicated with his power and seemed ready to introduce Hitlerism into America.”⁸⁹ Given recent events in Europe, those fears “were often real . . . not empty rhetoric.”⁹⁰ Even Democrats feared FDR’s ambitions.⁹¹ As one southern Democrat Senator said:

The President controls Congress . . . . He is now seeking to control the Court. . . . Give the President control over Congress and the Court and you will have a one man government. It may not be a dictatorship. A rose by any other name would smell as sweet.⁹²

FDR did not alleviate these concerns when he attempted (unsuccessfully) to “purge” anti-Roosevelt Democrats in the primary elections of 1938.⁹³ Also in 1938, “the partisan use of Works Progress Administration (WPA) funds” exploded into a scandal resulting in a congressional investigation, and NLRB rulings in favor of the Congress of Industrial Organizations—a labor union that backed FDR—“looked like the quid pro quo for the [union’s] $470,000 contribution to his reelection campaign in 1936.”⁹⁴

4. The ABA Committee’s Mid-1930s Reports

In its 1934 report, the ABA Committee recognized the necessity of delegating some lawmaking functions to expert agencies.⁹⁵ The “multitude of uncorrelated agencies” that had come to characterize the executive branch, however, created a “labyrinth in which the rights of individuals, while preserved in form, [could] be easily nullified in practice.”⁹⁶ Thus, the ABA Committee recommended that federal agencies should be organized “under a limited number of executives responsible to the Chief Executive.”⁹⁷ The ABA Committee also continued to emphasize separating agencies’ legislative and judicial functions simply because “a man should not be permitted to adjudge his own case.”⁹⁸ The Committee felt that adjudicators should be independent: “It is not easy to maintain judicial independence or high standards of judicial conduct when a political sword of Damocles continually threatens the judge’s source of livelihood.”⁹⁹

The following year, the ABA Committee Chair, Louis G. Caldwell, adopted a more aggressive tone.¹⁰⁰ He denounced criticisms of the Committee’s 1934 report as “founded on a belief in absolutism in government as a necessary prelude to so-called economic planning and on a ‘scrap-of-paper’ attitude toward the Constitution.”¹⁰¹ He argued that allowing “some 73 midget courts in Washington, most of them exercising legislative and executive as well as judicial powers” “dispense[d] with our principal safeguard against autocracy in government.”¹⁰²

The ABA Committee’s 1936 report pursued those themes further. The report explained that separation-of-powers doctrine “raises the principal barrier against accumulation of autocratic power.”¹⁰³ The Committee believed that comingling legislative, executive, and judicial functions in agencies produces evils “analogous to those against which the [separation-of-powers] doctrine is directed,” “leav[ing] the individual almost defenseless.”¹⁰⁴ The solution was to segregate agency functions, protect adjudicators’ tenure and compensation, and provide for judicial review of questions of law and fact.¹⁰⁵

The following year, the ABA Committee began to endorse agency rulemaking as a way to prevent courts from assuming legislative functions.¹⁰⁶ Officers “who are familiar with the administrative problems and processes” also would be better equipped to fill in statutory details through agency rules.¹⁰⁷ Notice-and-comment procedures in rulemaking would help to safeguard against improper use of the powers Congress delegated to agencies.¹⁰⁸

C. The Late 1930s to the Early 1940s

From the late 1930s into the early 1940s, the fear that authoritarianism might take hold in the United States spread to a broader swath of the American public.¹⁰⁹ FDR’s Court-packing and reorganization plans, along with Hitler’s and Mussolini’s economic and military successes, “caused mainstream commentators to worry not only about Roosevelt’s ambitions but also about whether economic desperation resulting from the Great Depression might cause the American people to clamor for a dictator.”¹¹⁰ That fear was bipartisan.¹¹¹ Administrative reform “became for many a righteous fight to defend democracy from dictatorship.”¹¹² In this atmosphere of 1938, the House of Representatives created the Committee on Un-American Activities to investigate subversive activities;¹¹³ the United States Court of Appeals for the District of Columbia reprimanded the Federal Communications Commission for employing “Star Chamber methods”;¹¹⁴ and the ABA Committee issued its aggressive 1938 report.

1. The ABA Committee’s 1938 Report

In 1938, Roscoe Pound, a prestigious scholar and former dean of Harvard Law School, chaired the ABA Committee.¹¹⁵ Pound initially supported the New Deal, but by 1938, his “vituperative writings against the New Deal leaned heavily on associating the New Deal with foreign socialism.”¹¹⁶ He equated the welfare state with the totalitarian state and “warned that the New Deal threatened to produce ‘a Duce or Fuhrer or superman head administrator.’”¹¹⁷

Reflecting the same fears, the ABA Committee’s rhetoric compared the FDR administration to a Soviet dictatorship.¹¹⁸ The Committee’s 1938 report inveighed against the New Deal’s “administrative absolutism,” which defined “law” as “whatever is done officially.”¹¹⁹ The Committee characterized administrative absolutism as “a highly centralized administration set up under complete control of the executive[,] . . . relieved of judicial review and making its own rules.”¹²⁰ Administrative officers enjoyed an “enormous concentration” of legislative, executive, and judicial power and answered only to the President, just like in fascist countries where “democracy has been brazenly cast aside.”¹²¹ Only an autocracy, the Committee announced, would accept agencies controlled by the executive, subject to political pressure, willing to overrule experts, and free from review by an “independent tribunal.”¹²² Against the “Marxian idea” that “there are no laws[,] only administrative ordinances and orders,” the ABA Committee advocated separating agency functions and judicial review to mimic separation of powers and due process of law.¹²³

2. The Walter–Logan Bill

The legislation that came to be known as the Walter–Logan Bill first appeared in 1939.¹²⁴ FDR’s failures with the Brownlow Committee report and his Court-packing plan had weakened him, and the recession had returned.¹²⁵ Conservative Democrats teamed up with Republicans, who had gained congressional seats in the midterm elections of 1938, to push for administrative reform.¹²⁶ The Walter–Logan Bill was based on the ABA Committee’s proposal.¹²⁷ When it passed Congress in 1940,¹²⁸ the Bill required agencies to implement statutes through rules, sometimes following notice and public hearings.¹²⁹ It required agencies to create administrative appeals boards whose members would take oaths of impartiality and not sit as judge in adjudications they had worked on in another capacity.¹³⁰ And it provided for judicial review of rulemaking and adjudications.¹³¹

Throughout the Walter–Logan Bill’s journey through Congress, discussion surrounding it was infused with anti-authoritarian rhetoric.¹³² “Supporters of the [Walter–Logan] [B]ill placed it in the context of rising totalitarianism abroad, and argued that such procedural reform would prevent a similar system from gaining ground in the United States.”¹³³ Those concerns provided much of the motivation for the Bill’s provisions on judicial review, adjudicator independence, and administrative procedure.¹³⁴

At the House Judiciary Committee hearings in March and April of 1939, the new chair of the ABA Administrative Law Committee, O.R. McGuire, gave a lengthy recitation that made the Committee’s report on administrative absolutism sound gentle in comparison.¹³⁵ He accused “a considerable group among us, largely recruited from some of the universities”—an apparent reference to the Brownlow Committee—of wanting to impose a parliamentary government in the United States, which would give the President “absolute managerial control over the entire administrative machinery of the Federal Government” and lead to dictatorship.¹³⁶ The Walter–Logan Bill would prevent that by providing for judicial review of agency rules to ensure that agencies acted within the bounds of their statutory authority¹³⁷ and by guaranteeing that politically independent boards would preside over adjudication of individual cases followed by an opportunity for judicial review.¹³⁸

The Senate Judiciary Committee Report, issued the following month, stated:

The basic purpose of this administrative-law [B]ill is to stem and, if possible, to reverse the drift into parliamentarism which, if it should succeed in any substantial degree in this country, could but result in totalitarianism . . . with the entire subordination of both the legislative and judicial branches of the Federal Government to the executive branch . . . .¹³⁹

To avoid totalitarianism, agencies would “be required to both observe the terms of the statutes and to exercise good faith in their administration of such statutes.”¹⁴⁰ Additionally, “uniform rules of practice and procedure” for agency adjudication would help keep agencies in line.¹⁴¹

The House Judiciary Committee report of July 1939 adopted a more neutral tone, asserting that “the regulators shall be regulated, if our present form of government is to endure.”¹⁴² The Committee accused some federal civil servants of developing “Messiah complexes” and becoming “contemptuous of both the Congress and the courts” and “disregardful of the rights of the governed.”¹⁴³ To the House Judiciary Committee, the solution was more uniform administrative procedure. Requiring agencies to regularize their procedures would benefit both regulated parties and the courts.¹⁴⁴

The House debated the Walter–Logan Bill from April 15 to 18, 1940, filling eighty-seven pages of the Congressional Record.¹⁴⁵ After Hitler began the London Blitz and FDR won reelection to a third term, the Senate followed with three days of debate in November, adding another thirty-three pages to the Congressional Record.¹⁴⁶ During the debates, “fierce political rhetoric flowed freely. As dictators’ armies marched across Europe, many perceived the debate over administrative reform as a struggle not only for the life of the New Deal, but also about whether the country would move toward dictatorship.”¹⁴⁷

Most of the anti-authoritarian rhetoric was too general to tie to any particular provisions of the Bill. Nonetheless, several themes emerged. First, supporters intended the Bill to rein in the executive branch and FDR himself.¹⁴⁸ For example, Representative Dudley White of Ohio viewed the Bill as a “vitally important” means of counteracting FDR’s ceaseless “greed for power.”¹⁴⁹ If supporters thought the Bill would control the office of the President, however, they were mistaken; the Bill expressly exempted the President from its rulemaking provisions.¹⁵⁰

Second, supporters saw judicial review as an antidote to administrative absolutism.¹⁵¹ They viewed agencies as “arbitrary, tyrannical, and bitterly prejudiced.”¹⁵² Representative Eric Michener of Michigan observed that allowing agencies to issue rules that have the force of law without providing an appeal to a court was tantamount to totalitarianism.¹⁵³ Senator William King of Utah gave a lengthy disquisition on the role of judicial review in distinguishing democracy from totalitarianism.¹⁵⁴ Judicial review, supporters argued, would counteract agencies’ authoritarian tendencies.¹⁵⁵

Third, supporters believed that “procedural safeguards” were a critical element of “the Anglo-American concept of government.”¹⁵⁶ Forcing agencies to provide “the minimum safeguards of fair hearing” was an essential defense against authoritarianism.¹⁵⁷ Thus, agencies would be required to “follow the legislative practice of Congress” by holding “open public hearings” on proposed rules.¹⁵⁸ In adjudications, regulated entities would receive, among other things, notice of the agency’s claims, an opportunity to examine witnesses, and a written decision upon the record.¹⁵⁹

Finally, and relatedly, Walter–Logan supporters considered independent adjudicators a key to avoiding authoritarianism.¹⁶⁰ They viewed the combination of legislative, executive, and judicial functions within an agency as autocratic. Representative Hatton Sumners of Texas said that the “power to make rules . . . construe rules, [and] enforce rules is the same breed of power that Mussolini and Hitler have.”¹⁶¹ Hence, separating those functions in individual agencies was critical.¹⁶²

The Walter–Logan Bill’s opponents employed similar rhetoric. They charged that the Bill was “backed by the utilities fascisti, the most deadly enemy to economic democracy this country has ever seen.”¹⁶³ Further empowering unelected judges with lifetime appointments would create a “judicial fascisti.”¹⁶⁴ Opponents anticipated that the Bill would “destroy democracy and . . . paralyze every governmental agency they did not like by interminable and endless litigation.”¹⁶⁵ Their arguments did not prevent the House and Senate from passing the Bill.¹⁶⁶

FDR vetoed the Walter–Logan Bill on December 18, 1940.¹⁶⁷ He defended administrative adjudication as a necessary “modern reform” and announced that he “could not conscientiously approve any bill which would . . . place the entire functioning of the Government at the mercy of never-ending lawsuits and subject all administrative acts and processes to the control of the judiciary.”¹⁶⁸ FDR recognized the need for administrative reform but preferred to await the report of the committee he had asked the Attorney General to form the prior year to study “this complicated field.”¹⁶⁹ Later that day, the House failed to override FDR’s veto.¹⁷⁰

3. The Attorney General’s Committee Report

The Attorney General’s Committee on Administrative Reform (“AG’s Committee”)—comprised of seven liberal and four conservative judges, professors, and practitioners—issued its report on January 22, 1941.¹⁷¹ The 250-page report discussed the growth and characteristics of administrative agencies before addressing in turn public information, informal and formal adjudication, judicial review of adjudication, rulemaking, a proposed Office of Administrative Procedure, and recommendations concerning individual agencies. The report included a proposed bill and was supported by twenty-seven monographs describing in detail the practices of particular agencies.¹⁷² Three of the AG’s Committee’s four conservatives joined a separate statement expressing Additional Views and Recommendations, including their own proposed bill.¹⁷³

The AG’s Committee Report presented the liberal majority’s findings in a neutral, almost scientific tone. It forthrightly acknowledged the debate about administrative reform,¹⁷⁴ but only explicitly (or nearly so) addressed the concerns over agencies’ authoritarian tendencies in a limited number of contexts. First, the majority acknowledged that the lack of published information about agency operations led to complaints that agencies were “a government of men.”¹⁷⁵ Where agency procedures were not “clearly outlined,” the majority conceded, “charges of ‘star-chamber proceedings’ may be anticipated.”¹⁷⁶ And where agency rules did not affirmatively provide “the basic outlines of a fair hearing,” parties were unlikely to believe that a fair hearing would be afforded.¹⁷⁷ Thus, to the majority, one response to charges of agency authoritarianism was to require agencies to publish their rules of procedure.

Second, the liberal majority proposed that mandating competence and impartiality in formal agency adjudicators would meet “a great part of the criticisms of administrative agencies.”¹⁷⁸

Third, the majority addressed the “current discussions of the administrative process” by advocating separation of each agency’s investigative and prosecutorial functions from its judging functions.¹⁷⁹ That separation would ensure that adjudicators would bring “that dispassionate judgment which Anglo-American tradition demands of officials who decide questions.”¹⁸⁰

Fourth, the majority suggested that opening formal adjudications to the public would prevent agencies from using “arbitrary methods.”¹⁸¹ The majority explained that “[s]tar chamber methods cannot thrive where hearings are open to the scrutiny of all.”¹⁸²

Finally, the majority endorsed judicial review as a “check against excess of power and abusive exercise of power in derogation of private right.”¹⁸³ While the majority believed that judicial review would prevent agencies from exceeding the bounds of their delegated authority, it did not think courts should have the power to undermine the values that led to the establishment of agencies in the first place.¹⁸⁴

The AG’s Committee’s conservative minority also avoided the rhetorical flourishes that had previously dominated the congressional debate.¹⁸⁵ The minority statement began by acknowledging that “[a]dministrative agencies are staffed for the most part by intelligent, capable, hard-working, and conscientious men and women. No careful student of administrative law would impair their efficiency, yet all desire that their procedures promote justice, fairness, and responsiveness to the public will, as in a democracy they should.”¹⁸⁶

The minority emphasized that separating prosecutorial and adjudicative functions was part of “the essence of fair adjudication” in the governments of “English-speaking peoples.”¹⁸⁷ Thus, for formal adjudications, the minority preferred that there be both “internal separation” of functions within agencies and “review by an independent administrative tribunal or specialized court.”¹⁸⁸

The minority also endorsed judicial review as “one of the important balances of our governmental system.”¹⁸⁹ The minority agreed with the majority that effective judicial review should check agency “error or abuse of power” without “hamper[ing] administrative efficiency.”¹⁹⁰

Finally, the minority advocated strongly for “a legislative statement of standards of fair procedure”—“not a detailed code but a set of principles and a statement of legislative policy.”¹⁹¹ Any opposition to such legislation to govern agencies, the minority said, would be tantamount to “a recognition of rejected forms of government.”¹⁹²

The AG’s Committee shifted the tone of the administrative reform debate considerably. Its report “won significant applause” and “reassured readers that the administrative state was not, in fact, rife with violations of individual rights.”¹⁹³ The AG’s Committee succeeded in deflecting concerns about “administrative absolutism” and refocusing the discussion on “administrative capabilities.”¹⁹⁴

Subsequently, the Senate Judiciary Committee hearings in the spring of 1941 were largely devoid of the kind of political rhetoric that characterized earlier deliberations. The nearly 1,700 pages of transcripts and reports barely mention totalitarianism, fascism, dictatorship, or even absolutism, except in the testimony of ABA Committee Chair McGuire and in that Committee’s reports, which were included in the hearing record.¹⁹⁵ In his testimony, McGuire queried whether the United States would “go totalitarian in an effort to escape pressure groups—to escape a Frankenstein of our own creation.”¹⁹⁶ The ABA Committee’s 1940 report warned that the United States was “the only oasis in a desert of totalitarianism.”¹⁹⁷ The ABA Committee stated, “It is as sure as night follows day that the continued statutory increase in the executive prerogative, at the expense of the two other coordinate branches of the government . . . will eventually destroy our federal system of government and convert it into an autocracy.”¹⁹⁸ In its lengthy disquisition on the superiority of the United States’ constitutional structure, the ABA Committee emphasized the need for judicial review of executive decisions, calling it “the essence of tyranny for an individual to be required to accept an administrative decision regardless of its injustice and error.”¹⁹⁹ The report expressed support for the bill proposed by the AG’s Committee minority.²⁰⁰ At its annual meeting in Indianapolis in the fall of 1941, the ABA officially endorsed the position of its own Administrative Law Committee.²⁰¹

D. Wartime

The United States entered World War II on December 8, 1941, the day after the attack on Pearl Harbor. During the war, Americans’ fear of authoritarianism intensified.²⁰² People were concerned that a citizenry regimented for the war effort might be “easily manipulated by a totalitarian dictator” or perhaps even “clamor[] for one.”²⁰³

That fear was, in some instances, directed toward administrative agencies. As Professor Schiller documented, the wartime “encounter with totalitarianism—both abroad and on the home front—diminished people’s trust in the administrative state, which they began to associate with the unchecked power of fascism.”²⁰⁴ Where once Americans valued expertise, now expert agencies appeared to be a prelude to complete executive power.²⁰⁵ “America’s encounter with the bureaucratic totalitarianism of Hitler and Stalin sullied the promise of expert administration.”²⁰⁶

Fear of the administrative state’s authoritarian tendencies reached “across the political spectrum and . . . entered mainstream culture.”²⁰⁷ Even New Deal liberals began to express such fears.²⁰⁸ Academics previously sympathetic to the administrative state began to voice concerns that agencies were overly bureaucratic, prone to prioritizing expertise over public participation, captured by the industries they regulated, and indifferent to “the wishes of the coordinate branches of government.”²⁰⁹

Americans’ fears intensified when the federal bureaucracy exploded with twenty-six new agencies related to the war effort.²¹⁰ The wartime agencies’ incompetence, inefficiency, and intimidation did not help their reputations.²¹¹ Nor did their secretiveness, obscure and excessively detailed regulations, or apparent disregard of the public interest and solicitude for the very industries they were meant to regulate.²¹²

The wartime agencies’ rationing and production controls became a “daily presence—and irritant—for consumers and businesspeople.”²¹³ Indeed, the Office of Price Administration rationed over ninety percent of consumer goods during the war.²¹⁴ People blamed federal agencies for inflation and chronic shortages.²¹⁵ Volunteer price checkers who snitched on violators “reminded some observers of totalitarian block wardens or ‘kitchen gestapo.’”²¹⁶ In 1943, the House of Representatives created the Select Committee to Investigate Acts of Executive Agencies Beyond the Scope of their Authority.²¹⁷ That Committee investigated the wartime agencies’ abuse of authority, fanning antibureaucratic sentiment and spurring the FDR administration to work with the Senate Judiciary Committee on a compromise bill.²¹⁸

E. The Administrative Procedure Act of 1946

Two weeks after Allied forces stormed the beaches of Normandy on D-Day in 1944, Senator Pat McCarran and Representative Hatton Sumners introduced the bill that became the APA.²¹⁹ The ABA Committee had drafted the bill as a compromise between the majority and minority proposals of the AG’s Committee.²²⁰ The history of that bill need not be repeated here.²²¹ It suffices to say that the debates lacked the vicious rhetoric of the pre-war years. Indeed, terms like totalitarianism, fascism, dictatorship, and absolutism make only the slightest appearances in the official legislative history of the APA.²²²

Harry Truman assumed the presidency on April 12, 1945, after FDR died three months into his fourth term.²²³ Truman did not share FDR’s objection to administrative reform.²²⁴ As a Senator, Truman had initiated a three-year investigation of the United States’ war preparedness and defense contracts,²²⁵ which gave him an intimate understanding of “the defects both in the United States’ war effort and in the agencies’ role in the effort.”²²⁶ In addition, while the APA worked its way through Congress, other concerns occupied Truman. The House passed the APA when the national railroad unions were on strike and “Truman could devote neither attention nor political resources to the APA.”²²⁷ That distraction, along with the public’s anti-bureaucratic sentiment and Attorney General Tom Clark’s weak bargaining with congressional conservatives, “painted Truman into a corner.”²²⁸ He signed the APA into law on June 11, 1946.²²⁹

II. How Fears of Authoritarianism Influenced the APA

The fear of authoritarianism influenced the APA profoundly. Most fundamentally, the APA codified the consensus that the federal bureaucracy need not result in authoritarianism.²³⁰ June 11, 1946 marked the moment when the United States accepted the existence of the “Administrative State.” As this Author has said elsewhere, “The APA represents an extraordinary moment of deliberative democracy.”²³¹ Following years of debate among the Supreme Court, Congress, the FDR and Truman administrations, the ABA, and other interested parties, the APA “essentially legitimated the administrative state.”²³² In exchange for that affirmation, congressional conservatives and the Supreme Court demanded that federal agencies be procedurally constrained and subject to judicial oversight.²³³ With those safeguards in place, the parties to this monumental legislative bargain agreed “to permit extensive government, but to avoid dictatorship and central planning.”²³⁴

Judicial review was the key to preventing agencies from becoming the pawns of a dictator. As Professor Schiller explained, in the late 1930s and early 1940s, Americans increasingly turned to the courts to protect their civil liberties “from the deadly tide of totalitarianism.”²³⁵ From its creation in 1933, the ABA Committee highlighted the need for courts to oversee federal agencies.²³⁶ The Committee’s influential 1938 report pinpointed as the central flaw of “administrative absolutism” the lack of judicial review of agency decisions.²³⁷ Committee Chair O.R. McGuire’s testimony on the Walter–Logan Bill emphasized that courts could prevent dictatorship by keeping agencies within the bounds of their statutory authority.²³⁸ Supporters of the Bill picked up on that theme in the floor debates, equating the lack of judicial review with totalitarianism.²³⁹ Even the liberal majority of the AG’s Committee recognized judicial review as a necessary check on agency abuses of power.²⁴⁰ Notably, the only inflammatory rhetoric during the floor debates on the APA came when Representative Sam Russell of Texas said that limiting judicial review would preserve agencies’ “dictatorial powers.”²⁴¹ The grant of judicial review in section 10 of the APA for “[a]ny person suffering legal wrong because of any agency action”²⁴² would bring agencies “into harmony with the rule of law,”²⁴³ protect private interests,²⁴⁴ and preserve congressional control over agencies,²⁴⁵ thus preventing executive overreach.

Also from the beginning of the debate about administrative reform, the ABA Committee and others viewed separation of functions as critical to preventing authoritarianism.²⁴⁶ Analogizing to constitutional separation of powers, the ABA Committee insisted that agencies’ legislative, executive, and judicial functions be segregated.²⁴⁷ Combining those functions “dispense[d] with our principal safeguard against autocracy”²⁴⁸ and was another essential characteristic of what the ABA Committee called “administrative absolutism.”²⁴⁹ Walter–Logan Bill supporters shared this view.²⁵⁰ Even FDR’s Brownlow Committee endorsed separation of functions in the context of independent agencies,²⁵¹ and no one on the AG’s Committee disagreed.²⁵² Relatedly, proponents of administrative reform believed that independent adjudicators would temper agencies’ authoritarian tendencies.²⁵³ Again, liberals did not disagree; the AG’s Committee majority recognized that adjudicators must demonstrate impartiality and “dispassionate judgment.”²⁵⁴

Section 5(c) of the APA answered these concerns by prohibiting investigators and prosecutors from supervising adjudicating officers or participating in the decision-making process,²⁵⁵ and section 7(a) added the requirement that formal hearings “be conducted in an impartial manner.”²⁵⁶ Republicans were not fully satisfied with these provisions, but felt they were “the first important step in the direction of dividing investigatory, regulatory, administrative, and judicial functions in Government agencies.”²⁵⁷

Though they played second fiddle to concerns about judicial review through much of the administrative reform debate, concerns about agency procedure persisted.²⁵⁸ The ABA Committee expressed concern about the lack of due process in agency adjudications in its first report,²⁵⁹ and it endorsed notice-and-comment rulemaking as a means of constraining agencies beginning in 1937.²⁶⁰ Supporters of the Walter–Logan Bill saw uniform procedure as another way to keep agencies in line.²⁶¹ By the time of the Walter–Logan Bill floor debates, supporters had come to see procedural safeguards in both rulemaking and adjudication as a critical element of any effort to prevent authoritarianism.²⁶² They called for agencies to mimic Congress by providing public hearings on proposed rules and to mimic courts with notice, cross examination, and written decisions based on a record.²⁶³

The AG’s Committee further shifted the focus of the administrative reform debate toward procedural reform.²⁶⁴ By the time the Committee issued its report in 1941, courts were no longer “a safe haven for conservatives.”²⁶⁵ They “might delay agency action, but courts would no longer so surely strike down the agency action.”²⁶⁶ Thus, both the liberal majority and conservative minority on the AG’s Committee recommended procedural reforms to prevent agencies from becoming authoritarian.²⁶⁷ The majority suggested opening formal adjudications to the public to avoid allegations of “star chamber methods.”²⁶⁸ The minority went further, advocating a codification of “standards of fair procedure” to avoid slipping into a “rejected form[] of government.”²⁶⁹

The APA answered these calls for procedural constraints to preserve democracy. In rulemaking, the APA mandated that agencies provide notice of the proposed rule, give the public an opportunity to express its views, consider the public comments, and publish the final rule with “a concise general statement of [the rule’s] basis and purpose.”²⁷⁰ In adjudications, the APA imposed “uniform standards . . . that made agencies behave more like courts.”²⁷¹ It required notice of the time, place, and nature of proceedings, the legal authority upon which the agency relied, and “the matters of fact and law asserted.”²⁷² The APA granted interested parties the opportunity to submit arguments and evidence.²⁷³ It required that independent adjudicators with powers akin to those of a common law judge preside over formal hearings.²⁷⁴ And it mandated that agencies base their decisions upon the record produced at the hearing²⁷⁵ and include “findings and conclusions, as well as the reasons or basis therefor.”²⁷⁶

Finally, the AG’s Committee majority recognized that the opacity of agency operations fueled public suspicions. The majority believed that publication of agencies’ procedural rules would build trust.²⁷⁷ Thus, section 3 of the APA required agencies to publish descriptions of their organization and delegations of authority, rules of procedure and forms, substantive rules and policy statements, and opinions or orders in adjudications.²⁷⁸

III. Why the APA Failed to Prevent Democratic Backsliding

The fear of authoritarianism shaped the APA profoundly. Yet, the APA has failed to prevent democratic backsliding in the United States. Certainly, many factors have contributed to the growth of executive power at the expense of Congress and the courts. This Part identifies ways in which the APA itself failed to forestall that development. Of course, hindsight is 20/20. The objective here is not to criticize the seventy-ninth Congress, but rather to inform a discussion of how the APA should be interpreted and amended to assist in preserving a healthy balance of powers in American democracy.

A. The President

The APA did not exert adequate control over the President to prevent “a steady accretion of power in the chief executive.”²⁷⁹ First, and most obviously, the APA did not apply to the President in sufficiently unambiguous terms. As this Author has explained elsewhere, the APA’s text and history show that the President should be considered an “agency” subject to both procedural constraints and judicial review.²⁸⁰ Among other things, the APA defined “agency” to include “each authority . . . of the Government of the United States,” a definition that is broad enough to encompass the President. Moreover, the definition of “agency” expressly exempted Congress and the courts, as well as some particular presidential functions, but not the President generally.²⁸¹ That omission “justif[ies] the inference that [the President was] excluded by deliberate choice, not inadvertence.”²⁸² In addition, the APA stands in stark contrast to the Walter–Logan Bill, which expressly exempted the President.²⁸³ More than forty-five years after its passage, however, the Supreme Court employed a version of the canon of constitutional avoidance to hold that the President is not subject to the APA.²⁸⁴

The APA’s failure to expressly subject the President to its provisions has facilitated the growth of presidential power.²⁸⁵ It has allowed presidents of both parties to take actions that have tremendous impacts on the American public “without following the APA’s procedural mandates and without full judicial review.”²⁸⁶ President Trump, for example, unilaterally barred the immigration of people who do not have health insurance and redirected billions of dollars to building a wall between the United States and Mexico.²⁸⁷ Such unilateral decision-making by a single person is the hallmark of authoritarianism.²⁸⁸ Applying the APA to the President would cabin the executive’s ability to impose such sweeping dictates and could forestall further democratic backsliding in the United States.²⁸⁹

Second, Congress, the ABA, and others involved in drafting the APA did not anticipate that presidents would take on the role of “Supersecretary in Chief,”²⁹⁰ as they have in the decades since its passage. The President may properly oversee other executive branch officers when they make decisions pursuant to statutory delegations of authority.²⁹¹ But now, presidents of both parties go well beyond that oversight, dictating those officers’ decisions or stepping into their shoes to exercise their authority, even where the President does not otherwise have statutory or constitutional power.²⁹² President Obama, for example, dictated a new immigration enforcement policy, even though the Immigration and Nationality Act delegates enforcement discretion to the Secretary of Homeland Security.²⁹³ Critically, because the President is not considered an “agency” under the APA, the President acting as “Supersecretary in Chief” assumes statutory power without satisfying the conditions on that power: APA procedure and judicial review.²⁹⁴ The President as “Supersecretary in Chief” effectively strips congressional delegations to agencies of their procedural constraints and judicial oversight, thus approaching authoritarian governance.²⁹⁵ Subjecting the “Supersecretary in Chief” to the APA would restore some balance between the President, Congress, and the courts.²⁹⁶

Third, the APA did not forestall the increased politicization of federal executive branch agencies.²⁹⁷ Since the APA’s enactment, the number of political appointees in the federal government has risen dramatically, reaching almost 4,000 today.²⁹⁸ Perhaps that development was inevitable with the increasing size of the federal bureaucracy. Nonetheless, the seventy-ninth Congress did not draft the APA anticipating that so much agency management would shift to the President’s immediate control; indeed, the APA did not address personnel management at all. That omission left a hole in the fabric of agency control that has grown ever wider as presidents have exerted increasing influence over agency personnel.²⁹⁹

B. The Courts

The APA also failed to prevent the courts from exacerbating democratic backsliding. As this Author explored in depth elsewhere, the federal judicial rules about rulemaking have added layers of procedure to the APA’s barebones provisions.³⁰⁰ This increased complexity has made agency policymaking difficult and slow, inspiring presidents to make policy unilaterally.³⁰¹ In adjudication, the courts have allowed departures from the APA’s norm of adjudicator independence. In his contribution to this Symposium, Professor Christopher Walker explores the “new world” of adjudication by “less-independent administrative judges, hearing officers, and other agency personnel.”³⁰² Less independence enables more presidential tinkering with agency decision-making.³⁰³

More generally, the APA did not prevent the Supreme Court from developing an aversion to Congress’s innovations in agency structure and control. In the 1930s, the Supreme Court “tolerate[d] legislative innovations that offset the New Deal’s transfer of power to the President,” but “as the administrative state became more firmly entrenched, the Court seemed to return to its earlier skepticism toward legislative overreaching.”³⁰⁴ INS v. Chadha,³⁰⁵ for example, in which the Court struck down the legislative veto, removed “an important if not indispensable political invention” for Congress to control agencies.³⁰⁶ Similarly, when the Court struck down the Balanced Budget and Emergency Deficit Control Act in Bowsher v. Synar,³⁰⁷ it eliminated a creative means for Congress “to oversee executive action by means other than the constitutionally prescribed lawmaking procedures.”³⁰⁸ More recently, the Court struck at the heart of independent adjudication when it held in Lucia v. Securities and Exchange Commission³⁰⁹138 S. Ct. 2044 (2018). that the SEC’s administrative law judges (“ALJs”) are inferior officers who must be appointed by the “President, ‘Courts of Law,’ or ‘Heads of Departments.’”³¹⁰ After that decision, President Trump moved all federal ALJs out of the competitive civil service and subjected them to political appointment by agency heads.³¹¹ In these ways, among others, the Court has exacerbated the growth of executive aggrandizement and democratic backsliding.

C. The Congress

Congress has played its part in the United States’ drift toward authoritarianism as well. Fundamentally, the APA did not prevent Congress from abdicating much of its control of agencies and allowing the President to step into the breach.³¹² Recognizing this risk, the seventy-ninth Congress attempted to strengthen its oversight of federal agencies to prevent authoritarianism. In 1945, the joint Committee on the Organization of Congress held hearings at which one witness testified that “the present trend of regulatory power toward dictatorship will continue until Congress strengthens its internal organization.”³¹³ The following year, Congress enacted the Legislative Reorganization Act of 1946, which “promised to end administrative abuses of authority by restoring Congress to its rightful place of primacy over the administrative state.”³¹⁴ Unfortunately, the Act, which shifted agency oversight from ad hoc investigatory committees to standing committees and reduced the number of committees, turned out to be “more of a political achievement than a legal one.”³¹⁵

Finally, the APA could not preserve congressional productivity. Though Congress is capable of making policy “even in periods of divided government and partisan acrimony,”³¹⁶ it often fails to fulfill that primary responsibility.³¹⁷ Indeed, Congress rarely enacts the federal budget on time.³¹⁸ As Professor Walker observes, in the past seventy-five years, Congress has amended the APA significantly only five times and not once in the past forty years.³¹⁹ Congress’s ineffectiveness in policymaking and lack of leadership in administrative law leaves a power vacuum; the President and the courts naturally fill the void.³²⁰ As Justice Jackson cautioned in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer,³²¹ Congress’s power will slip through its fingers if it “is not wise and timely in meeting its problems.”³²²

Conclusion

In the 1930s and 1940s, as the administrative state grew in the United States and fascism grew overseas, the fear that FDR might become the United States’ first dictator permeated Congress’s deliberation about how to control federal agencies. That fear shaped the final product of that deliberation—the APA—in significant ways. It led Congress to provide for judicial oversight of agency action; require separation of agencies’ various functions; build procedural safeguards into agency rulemaking and adjudication; and require agencies to publish their rules and orders.

Yet, though Congress designed the APA to prevent the United States from becoming an authoritarian regime, the APA has failed to prevent presidential power over agencies from escalating dramatically. This Article’s analysis shows that to forestall further democratic backsliding, a number of steps will be required.

First, the APA should be reinterpreted or amended to apply to the President when exercising authority delegated by statute to either the President or another federal officer.³²³ Second, the APA and related statutes should be reinterpreted or amended to further protect career employees from political influence and to ensure adjudicator independence.³²⁴ Third, the number of political appointees in the executive branch should be limited.³²⁵ Fourth, the federal courts should stop supplementing the APA’s text with judicially created rules about rulemaking.³²⁶ Fifth, the Supreme Court should allow Congress to develop innovative mechanisms for controlling agencies. Finally, for its part, Congress must recover its policymaking agility and reclaim its place as the “first among equals”³²⁷ if the United States is to remain a functional democracy.

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Avoiding Authoritarianism in the Administrative Procedure Act

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