University of Notre Dame

Textualism and the Administrative Procedure Act

July 6, 2023

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Kristin E. Hickman* & Mark R. Thomson**


Justice Kagan famously said that “we’re all textualists now.”1  She exaggerated, of course, but not by much.  As she and others have recognized, the Supreme Court today approaches statutory interpretation differently than it did forty or fifty years ago, with substantially more attention paid to statutory text and much less to legislative history or judicial assessments of best policy outcomes.2  What does the widespread acceptance of textualist methods for statutory interpretation mean for judicial review of the Administrative Procedure Act (APA)?3

Textualism and the APA—or at least contemporary understandings of its meaning4—seem headed for conflict.  Adopted in 1946,5 long before the rise of the new textualism,6 the APA is what Larry Solum would describe as textually “underdetermined.”7  Like the U.S. Constitution, the APA includes some requirements that are quite detailed,8 but many others that rely on terms that are undefined by the statute and sufficiently fuzzy that they seem more conceptual than instructional.9  Whereas other statutes task agencies with elaborating meaning and resolving details through rules and regulations,10 the APA is a statute of general applicability, with courts bearing the primary responsibility for its interpretation.11  Many of the key cases that interpret the APA and provide the foundation for contemporary agency rulemaking were decided by judges who neither claimed to be textualists nor relied on textualist reasoning.12  They developed standards and requirements to effectuate the APA’s terms that, at first blush, may seem hard to square with the APA’s text.13  Others have suggested as much.14

Just as the APA is underdetermined, textualism is not monolithic.  Judges and scholars who consider themselves textualists coalesce generally around certain definitional premises.  One is a certain skepticism, though not necessarily an absolute rejection, of legislative history as tool of statutory interpretation.15  Another holds that judges must enforce the text of clearly written statutes, even if the text seems contrary to statutory goals or claims regarding the enacting legislature’s intentions.16  Statutes are the product of compromises among legislators with competing preferences and goals, and departing from otherwise clear statutory text in favor of broader statutory goals risks upsetting those compromises.17  Beyond those few areas of broad agreement, however, self-identified textualists diverge frequently, and often quite adamantly.  The textualist label represents a range of views rather than a single, unified approach to statutory interpretation.18  For that matter, depending on how they are written, different statutes may demand—explicitly or implicitly—different textualist approaches.19  As Tara Leigh Grove has suggested, it matters “which textualism” courts apply.20

In recent years, the Supreme Court occasionally has applied a more limited approach to textualist reasoning21 that, if applied to the APA, could expand the perceived gulf between textualism and existing administrative law doctrine.  Our purpose with this Essay is to explore the implications of this trend for APA interpretation, particularly as it might apply to agency rulemaking.  We do not purport to address critics of textualism as an interpretive methodology; we speak primarily to those who are persuaded of textualism’s merits.  We also will not try to resolve all the many disagreements about textualism’s variations or the APA’s meaning.  For that matter, we do not address whether a more limited textualist approach to statutory interpretation might be appropriate for statutes other than the APA.  But for judges and scholars inclined to apply textualist reasoning to questions of APA interpretation, our goal is to refute claims that adhering to textualism requires rejecting many or even most longstanding interpretations of APA rulemaking requirements.  More normatively, we are concerned that a version of textualism that reduces the APA’s provisions, one by one, to their narrowest reading risks eroding APA rulemaking procedures to a degree that cannot possibly be reconciled with congressional intent.22

In Part I, we briefly elaborate the arguable conceptual challenges of APA interpretation using textualist methodology.  In Part II, we examine a few key instances in which the Supreme Court has contemplated the APA’s text.  Taking the Court’s trend toward a stricter or more limited textualism seriously, in Part III, we highlight several longstanding interpretations of the APA that could be in peril under that version of textualism.  We also offer alternative textualist constructions of the APA’s provisions that support those same longstanding interpretations.  Given space limitations, we focus principally on provisions associated with agency rulemaking and judicial review thereof, leaving other APA interpretive questions for another day.  Based on that analysis, we offer concluding thoughts that a more flexible textualism is more appropriate when interpreting the APA.

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©2023 Kristin E. Hickman & Mark R. Thomson.  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 authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*McKnight Presidential Professor in Law, University of Minnesota Law School.

**Associate, Clare Locke.  We would like to thank Bill Buzbee, Ron Cass, Caroline Cecot, Don Elliott, Tara Leigh Grove, Paul Larkin, Ron Levin, Ben Nyblade, and Jeremy Rozansky for helpful comments on an early draft of this Essay as well as Symposium participants for thought-provoking presentations and helpful conversations.  We also thank Mohammad Ziny for outstanding research assistance and the student editors at the Notre Dame Law Review for their hard work and patience.

1Harvard Law School, The 2015 Scalia Lecture | A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube, at 08:28 (Nov. 25, 2015), https://‌‌/watch?v=dpEtszFT0Tg [https://‌‌/HZ95-8AWG].

2See, at 08:12 (“Justice Scalia has taught everybody how to do statutory interpretation differently.”); Diarmuid F. O’Scannlain, Remarks, “We Are All Textualists Now”: The Legacy of Justice Antonin Scalia, 91 St. John’s L. Rev. 303, 304-306 (2017) (describing the judiciary’s transition from purposivist or policy-oriented to textualist interpretation); Jesse D.H. Snyder, How Textualism Has Changed the Conversation in the Supreme Court, 48 U. Balt. L. Rev. 413, 415 (2019) (“Examining the disparity in methodology at different time periods, the Court—albeit composed differently—no longer appears to be doing the same thing.”).

35 U.S.C. §§ 551‒59, 701‒06 (2018).  Unless indicated otherwise, all references in this Essay to statutory provisions are to the APA.

4A growing body of scholarship approaches APA interpretation using originalist methods, with some scholars arguing that some current administrative law doctrines are inconsistent with the original meaning of the statute.  See, e.g., Jeffrey A. Pojanowski, Neoclassical Administrative Law, 133 Harv. L. Rev. 852, 884–95 (2020); Evan D. Bernick, Envisioning Administrative Procedure Act Originalism, 70 Admin. L. Rev. 807, 847–55 (2018); see also Christopher J. Walker & Scott T. MacGuidwin, Interpreting the Administrative Procedure Act: A Literature Review, 98 Notre Dame L. Rev. 1963, 1982–89 (2023) (recognizing the literature on APA originalism).  Our discussion of APA doctrine in this Essay focuses on interpretations of the APA that currently govern judicial decisionmaking, irrespective of whether those interpretations coincide with original understandings of the APA’s meaning.

5Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946).

6See, e.g., William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 (1990) (situating the rise of the new textualism with the 1980s and particularly, although not exclusively, Justice Scalia’s ascendency to the Supreme Court in 1986).

7Lawrence B. Solum, Disaggregating Chevron, 82 Ohio St. L.J. 249, 256–64 (2021) [hereinafter Solum, Disaggregating] (describing types of underdeterminacy in the context of statutory interpretation and construction); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 473–75 (1987) (distinguishing legal underdeterminacy from legal determinacy and indeterminacy).

8See, e.g., 5 U.S.C. § 556(c) (listing eleven different powers of agency officials presiding over hearings).

9See, § 706(2)(A) (instructing courts to set aside agency actions found to be “arbitrary” or “capricious”).

10See Kristin E. Hickman, Foreword, Nondelegation as Constitutional Symbolism, 89 Geo. Wash L. Rev. 1079, 1096–1118 (2021) (documenting different types of delegations of agency rulemaking power contained in contemporary statutes).

11Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 138 n.9 (1997) (denying deference to agency’s interpretation of the APA because “[t]he APA is not a statute that the [agency] is charged with administering”); Harry T. Edwards & Linda A. Elliott, Federal Standards of Review: Review of District Court Decisions and Agency Actions 247 (3d ed. 2018) (“An agency’s interpretation of ‘generic statutes that apply to dozens of agencies [such as the APA and FOIA], and for which no agency can claim any particular expertise,’ will be accorded no deference and reviewed de novo.” (alteration in original) (quoting Collins v. Nat’l Transp. Safety Bd., 351 F.3d 1246, 1252 (D.C. Cir. 2003))).

12See, e.g., Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983); United States v. N.S. Food Prods. Corp., 568 F.2d 240 (2d Cir. 1977); Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973).

13See Christopher J. Walker, The Lost World of the Administrative Procedure Act: A Literature Review, 28 Geo. Mason L. Rev. 733, 735 (2021) (observing that the APA’s text “bears little resemblance to modern regulatory practice” because the courts have “graft[ed] onto the APA myriad administrative common law doctrines”).

14See, e.g., Jack M. Beermann & Gary Lawson, Reprocessing Vermont Yankee, 75 Geo. Wash. L. Rev. 856, 882–900 (2007); Richard J. Pierce, Jr., Waiting for Vermont Yankee III, IV, and V? A Response to Beermann and Lawson, 75 Geo. Wash. L. Rev. 902, 905–07 (2007); see also Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 246–47 (D.C. Cir. 2008) (Kavanaugh, J., concurring in part, concurring in the judgment in part, and dissenting in part) (contending the Portland Cement data disclosure requirement is at odds with the text of § 553).

15See, e.g., Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 369–89 (2012).  But see John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 731–37 (1997) (defending certain uses of legislative history in textualist interpretation).

16See, e.g., Scalia & Garnersupra note 15, at 57–58; John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2410–17 (2003) [hereinafter Manning, Absurdity Doctrine]; Eskridge, supra note 6, at 623.  But see John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 87 (2006) [hereinafter Manning, What Divides] (acknowledging that purposivists also “start—and most of the time end—their inquiry with the semantic meaning of the text”).

17See, e.g., Manning, What Dividessupra note 16, at 92; Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 112–13 (2010); Frank H. Easterbrook, Foreword to Scalia & Garnersupra note 15, at xxi, xxii.

18See, e.g., Tara Leigh Grove, Comment, Which Textualism?, 134 Harv. L. Rev. 265, 286–88 (2020) (documenting disagreements among textualists over interpretive tools like absurdity doctrine, substantive canons, and clear statement rules).

19See, e.g., Easterbrook, supra note 17, at xxi (“Some texts proclaim that they should be read ‘strictly’ (i.e., narrowly); others demand a broad or general application.”).

20Grove, supra note 18, at 286–88.

21In the administrative law context, a prime example is Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020), discussed in Section II.C. infra.

22See King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (“Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used . . . .”) (quoting NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941) (L. Hand, J.)).