Introduction: A Symposium for the Administrative Procedure Act's 75th Anniversary

Adam J. White
Volume 28
,  Issue 2

At the Administrative Procedure Act’s (“APA”) fiftieth anniversary, Professor Richard Pierce observed that the APA “has proven to be remarkably durable.”1Richard J. Pierce, Jr., The APA and Regulatory Reform, 10 Admin. L.J. Am. U. 81, 81 (1996); see also William H. Allen, The Durability of the Administrative Procedure Act, 72 Va. L. Rev. 235, 252 (1986) (“The Administrative Procedure Act has been durable, impervious to forthrightly legislated change.”). So have the debates that perennially surround it.

The APA’s seventy-fifth anniversary arrives in a time of fruitful discussion among judges, scholars, practitioners, and policymakers alike. New questions are being asked, and familiar questions are being reopened: from the deference that courts afford agencies’ legal interpretations,2See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2412–14 (2019); King v. Burwell, 576 U.S. 473, 485–86 (2015). to the breadth and nature of powers that Congress grants to agencies,3See, e.g., Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Gorsuch, J., dissenting); see also Paul v. United States, 140 S. Ct. 342, 342 (2019) (Kavanaugh, J., dissenting from denial of certiorari); Oil States Energy Servs. v. Greene’s Energy Grp., 138 S. Ct. 1365, 1373 (2018). to appointment and removal of agency personnel,4See, e.g., Lucia v. SEC, 138 S. Ct. 2044, 2049 (2018); see also Seila Law, LLC v. CFPB, 140 S. Ct. 2183, 2191 (2020); Collins v. Mnuchin, 938 F.3d 553, 587–88 (5th Cir. 2019), cert. granted, 207 L. Ed. 2d 1118 (2020) (argued Dec. 9, 2020). to the procedures of agency policymaking.5See, e.g., DHS v. Regents of the Univ. of Calif., 140 S. Ct. 1891, 1905 (2020); DOC v. New York, 139 S. Ct. 2551, 2567 (2019). If administrative law is usually the stuff of “pretty dull lecture[s],”6Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 511. it occasionally becomes the stuff of Supreme Court headlines, congressional debates, and even presidential campaigns—especially in recent years.

Amid current debates, the APA’s milestone anniversary is a useful opportunity to try to understand administrative law as the earlier generation did, and to gauge the distance between theory and practice—theories that were codified in the APA’s text, and practices that agencies and courts now undertake in the name of that text. To that end, we are fortunate to include in this symposium several essays tracing administrative law’s evolution from 1946.

Professor Aaron Nielson, for example, sees “three wrong turns” in the early development of agency adjudication under the APA, from the landmark precedent immediately preceding the APA (Seminole Rock), to the framing of the APA itself, to another landmark precedent immediately following it (Chenery II), and he analyzes more recent developments as attempts to mitigate the effects of those early wrong terms.7Aaron L. Nielson, Three Wrongs Turns in Agency Adjudication, 28 Geo. Mason L. Rev. 657 (2021). Professor Richard Pierce, by contrast, sees adjudication’s more recent developments as the wrong turns, and he offers reforms that might achieve the APA’s framers’ goals, if by different means.8Richard J. Pierce, Jr., Agency Adjudication: It Is Time to Hit the Reset Button, 28 Geo. Mason L. Rev. 643 (2021).

Professor Ronald Cass turns our attention to rulemaking, connecting its rise to the decline of a nondelegation doctrine that the Supreme Court had implemented barely a decade before the APA’s creation. He describes post–APA developments as attempts to mitigate the “unintended consequences” of the nondelegation doctrine’s decline. The mix of substantive and procedural reform, he contends, “transform[ed] the rulemaking process from a tool of management and ratemaking to a process aimed at lawmaking.”9Ronald A. Cass, Rulemaking Then and Now: From Management to Lawmaking, 28 Geo. Mason L. Rev. 683, 684 (2021).

Professor Christopher Walker takes the broadest view, surveying adjudication, rulemaking, and judicial review, to catalogue “mismatch between the statutory text, on the one hand, and judicial interpretation and regulatory practice on the other.”10Christopher J. Walker, The Lost World of the Administrative Procedure Act: A Literature Review, 28 Geo. Mason L. Rev. 733, 736 (2021). Reflecting on the “lost world” of the original APA, he concludes on a note of urgency: “unless Congress seeks to modernize the APA, the mismatch between” text and practice “will only increase.”11Id. at 763.

What, then, should “modernization” entail? Professor Michael Greve urges a major overhaul: the creation of a new “system of independent administrative courts” to decide a wide range of cases “de novo, on all questions of law or fact.”12Michael S. Greve, Why We Need Federal Administrative Courts, 28 Geo. Mason L. Rev. 765, 766,  798 (2021). But Professor Stuart Shapiro has serious doubts that any meaningful reform is feasible. Surveying the wreckage of failed legislative reform efforts, he concludes that future reform efforts will almost surely meet a similar fate.13Stuart Shapiro, The Impossibility of Legislative Reform and the Futility of Executive Regulatory Reform, 28 Geo. Mason L. Rev. 717 (2021). The 79th Congress passed the APA unanimously; could a modern Congress pass the APA at all?

The 79th Congress, and the intellectual and political contexts surrounding it, receive sustained attention in the symposium’s other essays, a collection of incisive commentaries on the APA’s founding generation. At the APA’s fortieth anniversary, Professor Paul Verkuil moderated a fascinating discussion with Walter Gellhorn and Kenneth Culp Davis, the two scholars most often identified as the APA’s intellectual founding fathers.14See generally Paul Verkuil, Walter Gellhorn & K.C. Davis, Present at the Creation: Regulatory Reform Before 1946, 38 Admin. L. Rev. 511 (1986). Three and a half decades later, in his contribution to this symposium, Professor Verkuil observes that Gellhorn and Davis were less the APA’s “founders” than its “detractors”; the APA’s true founder, he concludes, was Carl McFarland.15Paul R. Verkuil, The Administrative Procedure Act at 75: Observations and Reflections, 28 Geo. Mason L. Rev. 533, 535–36 (2021).

Professor Jeremy Rabkin, too, questions the conventional APA origin story, which binds the Act tightly to the famed 1941 Report of the Attorney General’s Committee on Administrative Procedure.16Jeremy Rabkin, The Origins of the APA: Misremembered and Forgotten Views, 28 Geo. Mason L. Rev. 547 (2021). In fact, he writes, the APA’s provisions more strongly reflect the Committee’s minority report, as well as other critics of 1930s administrative practices.17Id. at 551. (If Professor Gellhorn saw the APA’s fortieth anniversary as an opportunity “to celebrate the anniversary of the death of the legislative proposals that preceded it,”18Walter Gellhorn, The Administrative Procedure Act: The Beginnings, 72 Va. L. Rev. 219, 219 (1986). then perhaps rumors of their death were greatly exaggerated).19Cf. The Cambridge Companion to Mark Twain 7 (Forrest G. Robinson ed., 1995).

Professor Rabkin emphasizes that the APA was written in the shadow of World War II.20Rabkin, supra note 16, at 553–54. So did the APA’s lead sponsor, Senator Pat McCarran, who trumpeted its effort to “light up our democratic processes at a time when we need to know that our system continues to function despite gathering darkness on other continents.”21Pat McCarran, Three Years of the Federal Administrative Procedure Act—A Study in Legislation, 38 Geo. L.J. 574, 589 (1950). In this symposium, Professor Kathryn Kovacs explores this theme in much greater detail, reframing the APA as an intentionally “anti-authoritarian” project and highlighting what more should be done in that spirit.

Finally, Professor Joseph Postell seeks to deepen our understanding by broadening our perspective.22Joseph Postell, The Decision of 1946: The Legislative Reorganization Act and the Administrative Procedure Act, 28 Geo. Mason L. Rev. 609 (2021). He considers the Legislative Reorganization Act of 1946 (“LRA”), another major piece of legislation by the 79th Congress.23Pub. L. 79-601, 60 Stat. 812 (1946). A year later, the 80th Congress added the National Security Act of 1947, Pub. L. 80-253, 61 Stat. 495 (1947). Though enacted just weeks apart, the APA and LRA are too rarely considered together. Professor Postell describes how Congress intended for the LRA to build up Congress’s capacity to oversee the postwar, post–FDR administrative state. But the LRA proved to fall short of its proponents’ aspirations, and Postell suggests that its shortcomings might have affected the APA’s own evolution: “Without a Congress that is adequately in control of the bureaucracy,” he writes, “the APA’s provisions for judicial review had to be elaborated, in the minds of reformers, to place meaningful checks on administrative discretion.” When the LRA fell short of delivering the “congressionally centered approach to control of the administrative state” that Congress had envisioned, “the judicially centered approach through the APA was expanded.”24Postell, supra note 22, at 639.

Postell’s essay is doubly illuminating because it highlights not just Congress’s mid-century effort to reassert control over the administrative state, but also Congress’s assumption about what such control would entail. In the LRA, Congress was reorganizing itself to be a more effective oversight body—an easily understandable aim, but one that firmly cements Congress less as the “first branch” of constitutional government, and more as “ombudsman for the administrative state.” At its fortieth anniversary, Martin Shapiro observed that the APA exemplified the reformation of American government into parliamentary government.25Martin Shapiro, APA: Past, Present, Future, 72 Va. L. Rev. 447, 447–52 (1986). Postell’s essay here illustrates the point thoroughly.

The APA’s framers often spoke in terms of constitutional restoration, none more so than the bill’s sponsor, Senator Pat McCarran. The APA was a new “bill of rights,” he announced during the Senate’s debates, “for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal Government.”26Administrative Procedure Act: Proceedings in the House of Representatives May 24 and 25, 1946 and Proceedings in the Senate of the United States March 12 and May 27, 1946, 79th Cong. 298 (statement of Sen. Patrick McCarran). The APA “enunciates and emphasizes the tripartite form of our democracy,” he added after its enactment.27S. Rep. No. 79-248, at iii (1946); cf. Patrick A. McCarran, The Growth of Federal Executive Power, 56 Ann. Rep. A.B.A. 268, 269 (1933) (“The founders of our nation . . . endeavored to safeguard the people by a tripartite separation of powers. While the legislature and judiciary have remained within their respective domains, the executive has expanded beyond all expectation.”).

Perhaps Senator McCarran meant that the APA promoted “tripartite” government simply by constraining an overreaching executive branch, with legislative empowerment of judicial review.28McCarran, supra note 27, at 269. But more than anything, the APA entrenched a notion of administrative power as consisting primarily of quasi-legislative “rulemaking” and quasi-judicial “adjudication,” rather than as acts of executive power per se. After three quarters of a century, administrative lawyers are adept at analogizing agency actions to the work of legislatures and judges, with analogous norms and procedures. In his seminal defense of the tripartite Constitution, Publius defined executive power in terms of “energy,” “secrecy,” and “dispatch.”29The Federalist No. 70, at 422 (Alexander Hamilton) (Clinton Rossiter ed., 1961). And, Publius added, “in proportion as the number [of decisionmakers] is increased, these qualities will be diminished.” Id. at 423. To risk stating the obvious, the APA embodies the antithesis of those qualities. The APA’s restraints on executive power (and further restraints proposed in more recent legislation) may well be ideal in an era where administrative agencies drive policymaking and Congress focuses its own energies on reactive oversight.30See generallyCass, supra note 9; Postell, supra note 22. But in reframing the executive branch as equal parts legislative and judicial, surely something was lost.

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Not long after the APA was enacted, the political scientist Herbert Storing observed that “administration is the heart of modern government in the sense that age-old political and constitutional problems now present themselves as problems of (or in) public administration.”31Herbert J. Storing, Leonard D. White and the Study of Public Administration, 25 Pub. Admin. Rev. 38, 48 (1965). It would be hard to find a more apt description of our own times.32Cf. Gillian E. Metzger, Administrative Law as the New Federalism, 57 Duke L.J. 2023, 2027 (2008) (“[A]dministrative law may be becoming the home of a new federalism.”). Today’s administrative law is not just downstream from American constitutionalism, but also upstream from it.

That is yet another good reason, at the APA’s anniversary, to think seriously about administrative law’s past, present, and future. On behalf of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State, I am grateful to the editors of the George Mason Law Review for partnering with the Center in this annual symposium issue, and in the two symposia that preceded it.33See generally 27 Geo. Mason L. Rev. 401–570 (2020); 26 Geo. Mason L. Rev. 657–964 (2019). And I am grateful to the symposium’s authors for contributing such thoughtful and lively essays to it.

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