Notre Dame Law Review

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Noah A. Rosenblum*

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.

Introduction

Where is the President in the APA? 

The question is in earnest.  Modern government is agency government.  But much of the most significant agency action today is driven by the President.  Yet the most important law governing agency action is oddly silent about the Chief Executive.

The puzzle is especially striking when we focus on what the Administrative Procedure Act (APA) does and why it is so important.  As the academic literature has repeatedly emphasized, the APA memorialized a basic administrative law settlement.  Regulated parties would get a “day in commission” instead of a “day in court.”¹  But they could appeal to judges post-facto to check administrative overreach.  This model—allowing for limited judicial review of agency action in the name of protecting basic rights—found its way into the organic acts and practices of several pre-APA agencies.  And it became the core of the APA itself.  Agencies came to act in the shadow of judicial review.

This makes the APA’s silence about court review of the President troubling.  For the past seventy-five years, the statute has helped structure the administrative state, giving it a statutory frame, if not an actual constitution.  Yet it leaves today’s leading administrative actor out.

Hence our difficulty.  Where is the President in the APA?  How can it be that the most important statute for governing administration should be silent on the most important factor in administrative action?  What is this alleged statutory constitution that it could be so defective?  And what does it mean for the legacy of this venerable Act?

This Essay motivates these questions and offers a tentative historical answer.  The Essay hypothesizes that the President is missing from the APA because he was not the kind of administrative actor the APA worried about.  This in turn suggests that the President played a different role in administration at the time the APA was enacted, and that the purposes of judicial review then may have been different too.  At the time, court review of administrative action was justified as a last-ditch, stop-gap measure to ensure government action was not arbitrary and did not trench on protected rights.  To ensure those goals, courts did not need to review presidential administration, for two reasons: first, because the President was not the prime director of administrative action; and second, because when the Presidency was involved in administration, it was in service of the APA’s goals rather than in tension with them.  

If these conclusions are correct, they tell us something obvious but important about the APA: it embodies a wholly different vision of government from the one we live with now.  In other words, the APA is not only part of a “lost world” of administrative law but also a component piece of a lost governance regime.²  Its diamond jubilee gives us occasion to mark how much our government differs from the one it responded to and to begin imagining a new administrative law adequate to our new administrative realities.

Part I begins this project by identifying the importance of the President in the administrative state.  It shows how, as a matter of practice, presidential involvement in administrative action has become a central feature of American government.  It then shows how law has evolved to keep pace.  In a series of recent cases, the Supreme Court has made presidential administration the foundation for the lawfulness of the administrative state itself.

Part II turns to how administration has traditionally been legitimated: not through the Presidency but through courts.  The Part begins by briefly recapitulating the history of administrative law, to show how judicial review came to legitimate American administration.  Allowing impacted parties to contest agency action before federal judges helped make administration acceptable by reassuring regulated interests, pacifying opposition from lawyers, and harmonizing regulatory goals with conservative conceptions of the rule of law.  It also checked arbitrariness and so guarded against authoritarianism, a particularly important goal at the time the APA was developed.  This model of administrative law, with judicial review at its center, was enshrined in the APA and has remained central to administrative law.

Part III draws out the implicit tension between Parts I and II to frame this Essay’s puzzle: If the President is so central to administration, and the way to legitimate administration is through judicial review, why doesn’t the APA cover the President?  It looks at historical sources from the Bremer-Kovacs collection to confirm that the absence of the President is not accidental.  A brief canvass of some of the key documents from the legislative history of the APA suggests that the Presidency was hardly discussed in conjunction with the APA and that, when it was, it had little to do with presidential administration.

Part IV develops two hypotheses to explain why neither the APA itself nor the actors involved in its passage worried overmuch about the role of the President in administrative action.  First, and most obviously: the President simply was not an important driver of administrative action.  Second, and more subtly: insofar as the President was involved in administrative action, he was perceived to be advancing the same goals the APA sought to address through judicial review.  The Part concludes by drawing out what these two hypotheses would mean for administrative law and the legacy of the APA.  In brief: the APA is inadequate to our needs and we will need a new administrative law to account for a new world of presidential administration.  This in turn suggests three different paths for scholars of administrative law in a presidentialist age—one scholarly, based in research; another hopeful, grounded in democratic reform; and a third realist, looking for the rule of law in an era of executive unilateralism.

A brief Conclusion recapitulates the meaning of the APA’s silence on judicial review of presidential administration.

Continue reading in the print edition . . .

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©2023 Noah A. Rosenblum.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Assistant Professor of Law, NYU School of Law.  For questions and conversation, thanks to Nicholas Bagley, Aditya Bamzai, Patricia Bellia, Evan Bernick, Emily Bremer, Dan Ernst, Jill Family, John Ferejohn, Kristin Hickman, Ron Levin, Jeff Pojanowski, Jay Tidmarsh, Chris Walker, and all the attendees at the great Notre Dame Law ReviewSymposium on the History of the Administrative Procedure Act and Judicial Review.  For invaluable research assistance, thanks to Pieter Brower, Miranda Litwak, Angelo Pis-Dudot, and Rachel Stewart.  Special thanks to Nicholas D’Andrea, Michael Verdichizzi, and the rest of the Notre Dame Law Review staff for superlative editing.

1Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900–1940, at 5 (2014); see also Noah Rosenblum, Administration and Legal Orthodoxy: A Review of Tocqueville’s Nightmare, Soc’y for U.S. Intell. Hist. Blog (Nov. 30, 2014) (reviewing Ernst, supra), https://‌s-usih.org‌/2014‌/11‌/administration-and-legal-orthodoxy-a-review-of-tocquevilles-nightmare‌/ [https://‌perma.cc‌/7D9E-E6RG].

2Daniel A. Farber & Anne Joseph O’Connell, The Lost World of Administrative Law, 92 Tex. L. Rev. 1137 (2014).