Notice & Comment

A Literature Review on Theories for Interpreting the Administrative Procedure Act

On Monday, the Notre Dame Law Review hosted a terrific symposium on the history of the Administrative Procedure Act (APA). The videos of the panels and keynote are available here. For my contribution to the symposium issue, I’m attempting to sort out the various approaches to APA interpretation.  I’ve posted to SSRN a draft of the essay, entitled Interpreting the Administrative Procedure Act: A Literature Review, which is coauthored with my research assistant Scott MacGuidwin.

Here’s the abstract:

The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-six years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.

As part of the Notre Dame Law Review’s Symposium on the History of the Administrative Procedure Act and Judicial Review, this Essay provides a literature review of the competing methodologies for interpreting the APA: textualism, originalism, purposivism (or pragmatism), and a more dynamic or living approach that encourages administrative common law. The Essay concludes by embracing a middle-ground approach: The Supreme Court (and lower courts) should answer open statutory questions based on the text, structure, context, and original understanding of the APA. But when it comes to interpretive questions courts have already answered, the pull of statutory stare decisis should be quite strong, and reform to those precedents should be left largely to Congress. Such an approach best advances rule-of-law values such as predictability, reliance, stability, and the separation of powers.

It’s always tricky trying to categorize and characterize scholars’ work, and the current draft is a work in progress on that front. Moreover, we are no doubt missing some of the important contributions to the literature in the current draft. On both fronts, I apologize in advance.  But more importantly, please send me any additional citations (or corrections). The editing process will take place in February and March, so there’s still time for us to build out the literature view. The current draft of the paper is here.

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