The Administrative Procedure Act of 1946 (APA) is a “super-statute,” creating a robust, enduring governance structure for the modern regulatory state. An emerging literature on “APA originalism” maintains that some of the judge-created rules of administrative law are inconsistent with the APA’s original public meaning and therefore illegitimate. In the context of notice-and-comment rulemaking, some academics and judges wield APA originalism as a reason to abrogate the presumption of judicial review, hard-look review of agency factual conclusions, and judicial deference to agency interpretations of law. Some of the judges who would apply original public meaning to those issues have asserted an even more aggressive judicial role to limit agency rulemaking that has large-scale social or economic impact.
As an initial matter, this Article responds to the methodological premises of some of the APA originalists. They tend to approach the APA as through a time machine and seek the answers to today’s issues that they say are embedded in the 1946 law. APA originalists also tend to view the APA as a “shallow compromise,” enacted because the exhausted stakeholders wanted closure, and seek to limit administrative law to what they consider the narrow parameters of that compromise. This Article contests these premises. The APA was what political philosophers call a “deep compromise,” where stakeholders’ positions evolved in the course of the long debate and reached a creative resolution of governance issues that has proven to be lasting. Original public meaning for super-statutes such as this one ought to focus on the law's important concepts, which in this case are rooted in democratic theory.
Even viewed as a shallow compromise through the mechanism of a time machine, the APA presumes the availability of judicial review for agency rules, encourages a hard look at fishy agency reasoning, and tolerates or even valorizes a deferential attitude toward agency interpretations under many circumstances. Understood as a deep compromise whereby conservatives accepted the legitimacy of the modern administrative state and liberals accepted procedural guardrails protecting against secret or arbitrary agency rules, the APA supports a presumption of judicial review, hard-look examination of agency reasoning, and deferential consideration of agency reasoning. The doctrine that is most offensive to a serious APA originalism—whether the law is treated as a shallow or a deep compromise—is the Roberts Court’s creation of a “major questions doctrine” that antidefers to agency rulemaking having large social or economic effects, even when the agency action is authorized by the plain meaning of statutes broadly delegating rulemaking authority.
William N. Eskridge Jr. & John Ferejohn,
The APA as a Super-Statute: Deep Compromise and Judicial Review of Notice-and-Comment Rulemaking,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol98/iss5/3