The Administrative Procedure Act (APA) is a profoundly important statute, operating as the superstatute backbone for the modern administrative state. This Essay argues that, although the APA deserves to be held in high regard, its procedural provisions have had more mixed success than is commonly acknowledged. These procedural provisions govern agency adjudication and rulemaking and, in both contexts, were designed to establish minimum procedural requirements that would apply uniformly across administrative agencies. Drawing on the extensive research that informed the APA's drafting, this Essay argues that the APA has failed to achieve its goal in adjudication, but has succeeded spectacularly in rulemaking. The analysis emphasizes the importance of background principles and institutional context in interpreting the APA's text. This in turn reveals a looming danger: as knowledge of the APA's intellectual foundation erodes, a shallow textualism threatens to warp the statute's meaning and blunt its effectiveness.
Emily S. Bremer,
The Administrative Procedure Act: Failures, Successes, and Danger Ahead,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol98/iss5/2