Federal governance is increasingly characterized by presidential direction of administration. Yet the main statute that governs court review of administrative action, the Administrative Procedure Act, has strikingly little to say about the President.
This Essay seeks to make sense of this absence. It uses a brief survey of historical materials from the new Bremer-Kovacs Collection to sound the depths of the Administrative Procedure Act’s silence on the President. It then seeks to explain this omission by reference to contemporaneous discussions of the place of the president in the administrative state. The Essay hypothesizes that, at the time, the presidency was not a driver of administrative action in the way it is now, and that, when it was involved in the minutiae of administration, it was often in service of the same goals as the Administrative Procedure Act.
This history highlights some of the limitations of the Administrative Procedure Act for contemporary administrative law. It suggests the value of more research into the history of administration and raises questions about the possibility of returning to the world of governance the Administrative Procedure Act presumed. Despite the Act’s long history and success—marked by this recent celebration of its seventy-fifth anniversary—to keep court review of agency action at the center of administrative law might require new legal forms better adapted to an age of plebiscitary presidentialism.
Noah A. Rosenblum,
Making Sense of Absence: Interpreting the APA’s Failure to Provide for Court Review of Presidential Administration,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol98/iss5/9