Notre Dame Law Review

View PDF

William N. Eskridge Jr.* & John Ferejohn**

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.

Introduction

There is academic consensus that the Administrative Procedure Act of 1946 (APA) is a super-statute, “entrenching governmental structures and quasi-constitutional norms.”¹  Like other landmark statutes, the APA is a part of the foundation of the modern American state.²  The development of the modern state was resisted at every step and occupied much of the twentieth century.³  The result was the formation of a distinctively American social democracy which combined aspects of a welfare state with regulated capitalism in a diverse and increasingly inclusive political community.  Many super-statutes emerged as a result of popular pressure arising from social movements which were sometimes reflected in powerful electoral tides that altered the makeup of federal and state institutions in lasting ways.⁴  New substantive laws and their accompanying agencies were often hard-fought compromises between public and private values, which had to be accepted by subsequent legislatures, administrators, and courts if they were to stick.⁵  These deep, lasting compromises required advocates on all sides to reconsider and sometimes modify deeply held values and beliefs.

Importantly, the compromises that lasted were usually those that preserved and extended democratic values into the new institutional creations and practices, while preserving legal protections for property and liberty interests.⁶  The origin and evolution of the APA seem different from these.  Everyone agrees that it was a compromise between or among powerful interests, but it is hard to see the APA as pushed by a social movement, and it has not been seriously revisited by Congress.⁷  Still the 1946 Act can be described as a super-statute in two senses: first, it was a deep compromise that marked the partial acceptance of a social democratic welfare state in a capitalist economy; second, it was a “framework” statute that affirmed and extended democratic values and practices into new and old agencies and, in effect, enlisted courts in support of these values. 

It was perhaps easy for American public officials and citizens to recognize and endorse democratic values if those were framed at a high level of abstraction.  After all, in the United States, the necessity for popular legitimation was accepted even by the democracy-skeptical Framers.  They accepted that elections would have to be held frequently so that officials of the new federal government could be made to account for their actions before the people.⁸  But building democratic practices into the new federal government was a much trickier matter and the Framers themselves resisted such efforts in many ways.⁹  Still, the subsequent history of our country shows the enduring power of the democratic idea—that the people ought to have, must have, an important role in government even if that role may not be direct.  Indeed, democratic pressures are often exerted in making the people’s role more explicit and regular (as with the invention of direct primary, the referendum and popular initiative, and other direct democracy ideas).

The genius of the APA is that it managed to advance the democracy and governance projects to a substantial degree while, at the same time, respecting the rule of law.  In effect, the APA offered administrative agencies a legitimate way to make rules with the force of law by combining democratic values with due process values (which could be policed by courts).  Agency decisions were to be substantively reasonable, publicly justified, and responsive to public comments.  The APA accomplished this by devising procedures that reflected both democratic and due process values—procedures that were appropriate to agencies rather than courts or legislatures.  These procedures were not wholly original—pre-APA administrative practices already reflected similar values, to varying extents.¹⁰  But the APA was revolutionary in establishing a substantially uniform and much more inclusive template that Americans could expect to be honored throughout the federal government.¹¹

We argue that this reconciliation of democratic and due process values was accomplished, in part, by modeling the APA as a version of what we might call “folk” democratic theory—a theory of democracy that embodies popular understandings of how a democratic government should work.  This “theory” was probably as widely shared among opponents as proponents of the administrative state.¹²  The key idea in folk democratic theory is that government power is best exercised directly (by the people) insofar as that is possible.¹³  From the perspective of folk democracy, the right to vote is the fundamental democratic right.¹⁴  The assumption is that We the People—indeed, each person—is competent to make choices among candidates in elections (or to choose among policies where popular referenda are available).  The idea is reflected in what is sometimes called the sanctity of the voting booth (with secret ballots and regulations limiting campaigning in the near vicinity), and in the ideological centrality of the jury trial.  In effect, folk democracy assumes that we will get equal concern for our interests if only we can fully implement the requirement of equal respect for our votes.¹⁵  Folk democracy also insists that where authority must be exercised by elected representatives, these officials must remain politically “close” to the people by exposing themselves and their actions in office to frequent and fairly conducted elections.¹⁶  Elected representatives are expected to act on behalf of their constituents and to explain and justify their plans and actions to their constituents when running for reelection.  If the representative wants to be returned to office, he or she must provide a persuasive account of his or her actions to constituents.  The reasons offered by an elected representative are primarily directed to her voters (in support of her claim to act on their behalf and in their interests) as part of her appeal to take actions on their behalf.¹⁷  Importantly, for the most part, these justifications were not to be policed by courts but would be regulated politically by voters in constituencies.

Elected representatives cannot do everything in a complex modern state, however.  If it is to address the needs of a modern society, Congress must often delegate the authority to make binding rules to specialized administrative agencies.  Congress’s power to do that is a great part of what makes it valuable to the people.  When agencies must make legally binding rules, in this sense, they should, as far as possible, do so in the same ways that Congress would.  Folk democracy requires that, like elected representatives, agencies must give reasons for their actions—but, unlike elected representatives, the occasion for agency justifications is not an election (at least not directly).  Rather, explanations might be demanded in a congressional hearing or in a judicial proceeding questioning an agency rule or decision.  The agency’s reasons might be, in this sense, directed either to the legislature (which delegated authority to the agency and provides its funding), or the courts.  Ultimately, however, these justifications are owed to the electorate.  In this sense agency activity is accountable through democracy (elections) and to law (through judicial review of agency actions). 

Agencies must sometimes act like courts in providing some kind of due process to individuals or organizations that may be affected by a decision.  This is especially the case where the agency is engaged in adjudication.  But agencies are rarely required to provide the same kind or amount of due process when making rules.¹⁸  Indeed, the most important innovation in the APA was the creation or extension of notice-and-comment rulemaking across nearly all of the “administrative state.”¹⁹ This avoided cumbersome judicial procedures when legislating new rules but required agencies to act transparently: to receive and consider public comments, with judicial review hovering as an incentive to take comments seriously.²⁰  Agency decisionmakers are much less insulated than federal judges.  Judges are expected to give reasons or justifications for their decisions, but these reasons are supposed to be based in law and not on policy considerations.  As with courts, agency justifications are supposed to be closely tied to the proceedings leading to the decision.²¹

Folk democracy, so far as we have sketched it, rests on the supposition that ultimate political authority rests with We the People and that governance must therefore be accountable to the people directly or indirectly.  If political power is to be exercised other than directly, it must be legally delegated by “We the People” in some sense.  And delegated powers must be accompanied by reasons or justifications.  Folk democracy makes no claim about how much delegation can be justified; such limits must be found in the Constitution or in political morality.  Folk democracy says only that, when authority is delegated to elected or unelected officials, there is an expectation of justification or reason giving in return.  In that respect, folk democracy embodies a requirement of explicit accountability in the sense that it demands that exercises of delegated powers be justified to those subject to them, as well as to elected officials who act on behalf of the people.  This demand for reasons is an expression of democratic respect: to be required to give reasons for a decision is to recognize the moral claims of citizens to be respected as autonomous agents.  At the same time, folk democracy insists on reserving a vital democratic kernel of authority to the people: the power to remove officials from office (directly or indirectly) without any explanations given or required. 

*     *     *

While there is widespread acceptance that there is something super-statutory about the APA, there is no academic consensus as to the implications this may have for central doctrinal issues of administrative law.  Critics of administrative common law, such as Kathryn Kovacs,²² and critics of Chevron deference, such as John Duffy,²³ have invoked the APA as a framework statute imposing strict, unchanging rules for the administrative state.²⁴  Conversely, academics supporting administrative common law, such as Gillian Metzger,²⁵ and Chevron deference, such as Ron Levin,²⁶ defend these practices as consistent with the APA.  These doctrinal debates are part of larger discussion: Have judicial glosses on the APA’s broad and often vague text ventured past the line of legitimate dynamic interpretation of an old law and into terrain where the judiciary has overstepped its Article III authority?  Is so-called “administrative common law” illegitimate as a matter of democratic theory?  Rule-of-law theory? 

Evan Bernick, Kathryn Kovacs, Jeffrey Pojanowski, and Christopher Walker have advocated “APA originalism”²⁷: they maintain that the Supreme Court should trim back judicial glosses announcing a presumption of judicial review, imposing additional requirements on agency decisionmaking, and‌/or deferring to those decisions and should hew carefully to the “original understanding” of the APA, its spare text interpreted as Congress and the public would have understood it in 1946.²⁸  Where the “APA prescribes concrete rules of decision,” the APA originalists “favor treating those instructions as fixed, enduring law, not a springboard for common law that contradicts that entrenched understanding.”²⁹

For us, a particularly thoughtful normative framework for APA originalism is that developed by Professor Kovacs.  She argues that the APA’s democratic legitimacy is entirely a product of the political debate and settlement accomplished when the law was enacted, virtually without dissent, in 1946.³⁰  Updating should be left to Congress or (failing that) an agency whose officials are accountable to the elected President and Congress.³¹  But the APA is an unusual super-statute: it does not empower a single agency to continue the public deliberation as a basis for entrenching and updating the statutory rules, principles, and norms over time; the updating has been accomplished by federal courts filling in the details common-law style; and Congress has not significantly updated the statute to legitimate the administrative common lawmaking.³²  For Kovacs, the judiciary’s administrative common law is largely illegitimate; without active deliberative involvement of legislators, administrators, and other executive branch officials, the new rules lack the public, democratic involvement that has entrenched classic super-statutes such as the Social Security Act of 1935, the Civil Rights Act of 1964, and the Affordable Care Act of 2010 (thus far).³³  As a corrective, she would hew to the APA’s “fierce compromise”³⁴ fixed into public law in 1946.³⁵  Justice Gorsuch has explicitly adopted this perspective,³⁶ and other Justices lean in that direction.³⁷

Most of these originalists approach the APA through a time machine, what linguists call an “extensional” approach to historical meaning.³⁸  They view the APA as codifying a detailed set of hard-bargained compromises that must be respected by modern interpreters.³⁹  Such APA originalists have not fully explained their approach, but their likely justification would be that the only democratic buy-in for the super-statute came in 1946.  Judges ought to follow that consensus today because they lack the popular accountability, and therefore legitimacy, needed to update the original bargain.  The theory of folk democracy suggests that these APA originalists have too thin an understanding of both governance and democracy.  We also submit that they have an unworkable theory of originalism: once the circumstances of society and government have changed, it is hard and ultimately impossible to enforce an original bargain.  As we argue elsewhere, the only workable approach to historical meaning is to explore what linguists call an “intensional” approach to historical meaning: What “concept” or purpose did the stakeholders and legislators settle on in 1946?⁴⁰

Inspired by such a folk theory of democratic governance and a realistic approach to original meaning, Part I of our Article suggests a different understanding of compromise that better fits super-statutes such as the APA, namely, the notion of a “deep compromise.”  The APA was the culmination of a great debate over how to reconcile the governance needs of dynamic agency lawmaking with democratic accountability and the rule of law.  Before the APA debate, the country was settled on the ideas that agency lawmaking was necessary and that it was impractical to limit it by hard-and-fast statutory rules.⁴¹  Judicial review was considered the better means to limit agency discretion—but how searching should judicial review be?⁴²  The New Deal made this question an urgent one: to protect vested property and contract interests against what they considered arbitrary agency regulation, its critics called first for an administrative court and then for direct public participation in the administrative process, followed by judicial review.⁴³  Engaging in their own thorough survey of best practices and accepting the need for reform, the New Dealers agreed to greater public notice and participation, with judicial review focused on jurisdiction, procedure, and substantive arbitrariness.⁴⁴  The critics endorsed large-scale congressional delegation of lawmaking authority and the inevitability of agency discretion, but checked by public participation and outside review.⁴⁵  

In the extended debate over administrative procedure reform, roughly 1933–1946, both sides evolved as they debated fundamental issues, and public attitudes changed as well.⁴⁶  For super-statutes, compromises reflect that normative evolution and seek to accommodate the most important values advanced by each side.  The APA’s big policy innovation is notice-and-comment rulemaking, which asserted the kind of due process that agencies were to provide, and the deep compromise—the central concept of the law—authorized agencies to engage in large-scale lawmaking, in return for public participation and judicial review.⁴⁷

There is no static “original understanding” of the APA for issues the framers did not consider and for which progressives and conservatives did not deliberate.  Instead, the original concept was a balance between foundational principles.  The deep compromise reflected the practical needs of the citizenry devastated by the Great Depression, changing demography and views within the legal profession, the nation’s transformative experience during World War II, and the entrenchment of a generous delegation doctrine and deferential approach to interpretation by the New Deal Court.⁴⁸  In fact, the compromise was made possible only because the American Bar Association (ABA) reconfigured its leadership to include people sympathetic with the New Deal and who were prepared (on their own terms) to accept the administrative state.⁴⁹  Viewed as a deep normative debate applicable to a changing society, the APA’s evolution could not stop in 1946—and our folk theory of democracy explains how its post-1946 evolution has been legitimate, until very recently, as a regime-changing Supreme Court has challenged a foundational term of the APA’s deep compromise.  What has driven this evolution until recent years has not been willful judicial lawmaking, but instead judicial elaboration of notice-and-comment rulemaking and its ascendancy in the modern state.  Under our theory, administrative common law has on the whole been a product of institutional interaction and not a diktat from the Supreme Court. Our concern is that the Roberts Court has moved from institutional cooperation to diktat in agency review. 

In Part II, we argue that some of the controversial doctrines associated with administrative common law—namely, the presumption of judicial review, the hard-look doctrine for arbitrariness review, and some kind of deference to agency interpretations of law—are defensible on originalist grounds based upon a proper understanding of the APA’s deep compromise.  Indeed, even under the more shallow understanding of compromise held by the APA originalists, these doctrines are defensible.  The institutional interactions that have driven the APA’s evolution help explain this phenomenon.  For example, agencies turned decisively toward notice-and-comment rulemaking to make policy in the 1960s and 1970s (a generation after the APA), and the executive branch largely acquiesced in lower court demands that agencies explain their reasoning and create a public record that could be usefully examined by a court.⁵⁰  It was a short step from that to the Supreme Court’s holding that agencies must explain why they reject reasonable alternatives and how their final rules accord with statutory purpose as applied to facts on the ground.⁵¹  

In the process, we push back at Professor Kovacs’s specific critique of the APA’s evolution.  She argues that, unlike other super-statutes, the interpretation of the APA has not been controlled by a single agency and that its orphan status has allowed courts to usurp the authority to update the statute.⁵²  The diffusion of agency responsibilities for elaborating on the APA, however, does not necessarily undermine the legitimacy of its administrative evolution.  There is, in fact, an agency that has pioneered or acquiesced in many of the APA innovations, namely, the Department of Justice (DOJ), which published an influential interpretive manual for the APA in 1947⁵³ and has been the key player in the APA’s application to new issues of administrative law.  As we see it, what is called “administrative common law” is usually the product of a public dialogue among agencies that aggressively regulate, businesses and their organizations that push back, DOJ lawyers who defend agency authority but also acquiesce in process-based limits, judges who sometimes rein in agencies, and legislators who oversee the agencies and consider proposals to amend their authorizing laws.⁵⁴  Like other super-statutes, the APA’s text is often vague, and its structure is spare.⁵⁵  Whatever theory one claims to apply, a great deal of gap filling was inevitable to operationalize the APA’s text and structure.  

The key issue is to distinguish between democratically legitimate elaboration of the super-statute’s deep compromise and illegitimate judicial usurpation.  Have courts filled in the details of the statutory scheme in ways needed to carry out its legitimating purpose, or have they imposed their own norms onto the APA?  Have courts respected the original balance achieved by the APA, or have they reset the balance?  Most administrative common law has secured some democratic pedigree through the challenge-and-response process that involves lower courts, agency and DOJ officials, sometimes the White House, sometimes Congress, and the regulated community. 

Part III applies both versions of APA originalism—the version that enforces the shallow understanding of compromise and our version that applies the deep understanding of compromise—to the current debate over the nondelegation and major questions doctrines.  Professor Kovacs’s critique starts with a shallow understanding of the 1946 compromise and objects to the lack of democratic accountability for judicial lawmaking.⁵⁶ The Roberts Court’s assault on the modern administrative state through its threat to strike down laws delegating lawmaking authority to agencies and through its new super-strong clear statement rule trumping agency rules having a large social or economic impact is judicial lawmaking on steroids.⁵⁷  Any originalist account that does not apply both ways strikes us as more partisan politics than application of neutral rules of law.  We argue that the original deal does not support the Roberts Court’s ambitious super-strong clear statement rules, and we consider the Court’s opinion in the OSHA COVID case to be the most significant violation of the APA in recent memory.⁵⁸

The deep compromise of 1946 suggests even stronger objections, as the Court’s aggressive use of substantive canons threatens to unsettle the foundations for the administrative state carefully cemented by the APA.  The deliberative process that produced the APA legitimated administrative lawmaking so long as agencies were transparent, sought public comment, justified their rules with a well-reasoned explanation, and were not hiding the ball.  Conversely, that process rejected review that substituted a juriscentric vision for the regulatory state for one implemented by agencies faithfully implementing congressional policies.⁵⁹  The roided-up version of the major questions doctrine is triply undemocratic and therefore triply illegitimate: (1) a Supreme Court whose majority is not only unaccountable but was assembled through an irregular process (2) is trumping the democratic deliberation engaged in by accountable agencies addressing a public problem (or in the case of COVID a public emergency), (3) by a rule imposing a clarity tax on Congress that makes it harder for We the People to enact efficacious legislation.⁶⁰  This is breathtaking judicial activism at its worst. 

Overall, the APA’s deep compromise also suggests sensible answers to important doctrinal questions.  As the APA’s text and structure demonstrate, judicial review of final agency rulemaking is presumptively available, with exceptions disfavored.⁶¹ To give efficacy to the APA’s requirement that rules not be arbitrary or capricious, the agency must pay attention to the public comments and must respond to the most serious ones with reasoning tied to the statutory purposes and plan.  As to interpretations of law, the APA requires that judges assume responsibility—a responsibility we believe is carried out by a sympathetic reading of the statutory text, richly informed by legislative deliberations, an agency’s fact-based understanding of how to address the statutory goals, and public as well as private reliance on the agency’s rules or interpretations.  Basically, we believe the APA is best viewed as consistent with the three leading cases in place when the law was enacted: Skidmore v. Swift & Co.,⁶² Bowles v. Seminole Rock & Sand Co.,⁶³ and NLRB v. Hearst Publications, Inc.⁶⁴  Because nothing in the APA text, structure, or legislative history suggests a whiff of legislative disapproval of any of these leading decisions, you cannot say that the “original” meaning of the APA, whether understood by Congress or by the public, abrogated any and all judicial deference to agency interpretations. 

Continue reading in the print edition . . .

---

©2023 William N. Eskridge Jr. & John Ferejohn.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article 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.

*John A. Garver Professor of Jurisprudence, Yale Law School. 

**Samuel J. Tilden Professor of Law, NYU School of Law.

We appreciate comments on an earlier draft of this Article at the Notre Dame Law Review’s Federal Courts Symposium on the APA.  We received excellent research assistance and substantive comments from Alex Friedman (YLS Class of 2025), Caroline Lefever (YLS Class of 2024), Evan Lisman (YLS Class of 2024), and Gabriela Monico Nuñez (YLS Class of 2024).

1Eric Berger, Individual Rights, Judicial Deference, and Administrative Law Norms in Constitutional Decision Making, 91 B.U. L. Rev. 2029, 2054 (2011); accord Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 Sup. Ct. Rev. 345, 363 (opining that the Administrative Procedure Act (APA) is a “superstatute, or subconstitution, in the field of administrative process”); Richard Albert, Nonconstitutional Amendments, 22 Can. J.L. & Juris. 5, 18 (2009); David S. Law, Generic Constitutional Law, 89 Minn. L. Rev. 652, 675–76 (2005); John C. Roberts & Erwin Chemerinsky, Entrenchment of Ordinary Legislation: A Reply to Professors Posner and Vermeule, 91 Calif. L. Rev. 1773, 1816 n.151 (2003); Cass R. Sunstein & Adrian Vermeule, Libertarian Administrative Law, 82 U. Chi. L. Rev. 393, 466 (2015). 

2See Adrian Vermeule, Law’s Abnegation 39 (2016).

3See generally Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (1982); Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862–1928 (2001); Theda Skocpol, Protecting Soldiers and Mothers (1992).

4See William N. Eskridge Jr. & John Ferejohn, A Republic of Statutes: The New American Constitution 3–12, 16–17, 29 (2010).

5See id. at 12–22.

6E.g., Daniel B. Rodriguez & Barry R. Weingast, The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and Its Interpretation, 151 U. Pa. L. Rev. 1417, 1472–96 (2003) (documenting the accommodations for businesses included in the Civil Rights Act of 1964); Jill S. Quadagno, Welfare Capitalism and the Social Security Act of 1935, 49 Am. Socio. Rev. 632 (1984) (demonstrating that Social Security Act both protected property and accommodated working-class demands).

7Congress has amended the APA no fewer than sixteen times and has considered but not adopted major overhauls or modernizations.  See Christopher J. Walker, Essay, Modernizing the Administrative Procedure Act, 69 Admin. L. Rev. 629, 629, 670 (2017).

8Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution 170–75 (2016) (documenting the Framers’ simultaneous commitments to annual elections and their wariness of democracy).

9In Federalist No. 63, for example, Madison defended the creation of the Senate which would preserve liberty and stability against democratic passions:

[T]here are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.  In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? . . .  The true distinction between [the ancient republics] and the American governments, lies in the total exclusion of the people, in their collective capacity, from any share in the latter, and not in the total exclusion of the representatives of the people from the administration of the former.

The Federalist No. 63, at 320–22 (James Madison) (Ian Shapiro ed., 2009).

10See Joanna L. Grisinger, The Unwieldy American State 61 (2012).  

11See Emily S. Bremer, The Undemocratic Roots of Agency Rulemaking, 108 Cornell L. Rev. 101–13 (2022) (demonstrating that pre-APA agency consultation was less open and inclusive than the notice-and-comment process established by the APA).

12Folk democratic theory reflects the views of the opponents of the proposed Constitution as well as the views of later populist and progressive reformers.  While the Antifederalists failed to get what they wanted at the Philadelphia Convention or in the early Congresses, Gordon Wood argues that within a very few years many antifederalist views, and indeed antifederalist politicians, prevailed.  The democratic impulse overwhelmed the federalists everywhere.  Gordon S. Wood, The Radicalism of the American Revolution 259–71 (1991).

13John Ferejohn, Deliberation and Citizen Interests, in The Oxford Handbook of Deliberative Democracy 420 (Andre Bächtiger, John S. Dryzek, Jane Mansbridge & Mark Warren eds., 2018); see also Christopher H. Achen & Larry M. Bartels, Democracy for Realists: Why Elections Do Not Produce Responsive Government 1, 9 (2016) (describing the “folk theory” of democracy central to popular thinking about politics).  Achen and Bartels provide a sustained critique of the accuracy of the folk democratic conception of politics.  For our for purposes it suffices to note that this is the conception of democracy is widely held among the American public.  Achen & Bartels, supra.

14Ferejohn, supra note 13, at 421.

15These ideas are drawn from Ronald Dworkin, Taking Rights Seriously (1977), especially in chapter six of that book (“Justice and Rights”), where he argues that equal concern and respect is the best conception of political equality.  See id. at 179–83.  Although Dworkin sees equal concern and respect as, together, characterizing a single value (political equality), id. at 182, we think that equal concern and equal respect are two values, not one as Dworkin argues, and that their relationship is contingent.  We will not address, here, the gap between the citizen and person that this definition raises.

16Achen & Bartels, supra note 13, at 21–22.

17The famous speech by Edmund Burke to his electors at Bristol indicates that the appropriate grounds for justification are controversial.  Must the elector convince his voters that he has advanced Bristol’s interests or the national or imperial interests?  See Edmund Burke, Speech to the Electors of Bristol (Nov. 3, 1774), reprinted in 1 The Founders’ Constitution 391, 392 (Philip B. Kurland & Ralph Lerner eds., 1987).  The best modern descriptions of electoral accountability are found in Richard F. Fenno, Jr., Homestyle: House Members in Their Districts (2002), and David R. Mayhew, Congress: The Electoral Connection (2d ed. 2004).

18In chapter two of The Unwieldy American State, entitled “A ‘Bill of Rights’ for the Administrative State,” Joanna Grisinger describes the complex debates and compromises in the APA, concerning what kind of due process was required of agencies.  Grisinger, supra note 10, at 59–108.  

19George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557, 1650–51 (1996).

20See Grisinger, supra note 10, at 78, 80–81.

21See id. at 80–81.

22See Kathryn E. Kovacs, Superstatute Theory and Administrative Common Law, 90 Ind. L.J. 1207, 1209–1211 (2015).  

23 See John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113, 190–99 (1998). 

24See id. at 130, 193; Kovacs, supra note 22, at 1223. 

25See Gillian E. Metzger, Foreword, Embracing Administrative Common Law, 80 Geo. Wash. L. Rev. 1293, 1348–52 (2012). 

26See Ronald M. Levin, The APA and the Assault on Deference, 106 Minn. L. Rev. 125, 183–90 (2021). 

27See Ronald M. Levin, The Evolving APA and the Originalist Challenge, 97 Chi.-Kent L. Rev. 8, 29–49 (2022) (discussing the APA originalists and critiquing their approach and proposals). 

28See Evan D. Bernick, Envisioning Administrative Procedure Act Originalism, 70 Admin. L. Rev. 807, 827–28, 845 (2018); Kovacs, supra note 22, at 1250–54; Jeffrey A. Pojanowski, Neoclassical Administrative Law, 133 Harv. L. Rev. 852, 884–86, 890–91 (2020); see also Christopher J. Walker, The Lost World of the Administrative Procedure Act: A Literature Review, 28 Geo. Mason L. Rev. 733, 740–45, 751–57 (2021) (exploring the dynamic interpretation of the APA and noting originalist reservations); Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 245–46 (D.C. Cir. 2008)(Kavanaugh, J., concurring in part, concurring in the judgment in part, and dissenting in part) (expressing strong reservations about the common-law evolution of the APA).

29Pojanowski, supra note 28, at 899. 

30See Kovacs, supra note 22, at 1250.

³¹Id. at 1219.

32See Walker, supra note 7, at 630–31.  

33See Kovacs, supra note 22, at 1254–58.

34Shepherd, supra note 19, at 1557. 

35See Kovacs, supra note 22, at 1208–09, 1243, 1260; see also Eskridge & Ferejohn, supra note 4, at 186–200 (on the Social Security Act); id. at 7 (on the Civil Rights Act); Abbe R. Gluck & Thomas Scott-Railton, Affordable Care Act Entrenchment, 108 Geo. L.J. 495, 515–17 (on the Affordable Care Act).

36See Buffington v. McDonough, 143 S. Ct. 14, 16–17 (2022) (Gorsuch, J., dissenting from the denial of certiorari). 

³⁷ See, e.g., Baldwin v. United States, 140 S. Ct. 690, 692 (2020) (Thomas, J., dissenting from the denial of certiorari) (arguing from APA originalism that Chevron deference ought to be discarded); Jeff Overley, Chevron Deference’s Future in Doubt if Barrett Is Confirmed, LAW360 (Oct. 23, 2020), https://‌www.law360.com‌/articles‌/1318381‌/chevron-deferences-future-in-doubt-if-barrett-is-confirmed [https://‌perma.cc‌/R9SG-VGCP] (noting that Justice Barrett may be inclined towards originalism in administrative law).

38William N. Eskridge Jr., Brian G. Slocum & Stefan Th. Gries, The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning, 119 MICH. L. REV. 1503, 1526–27 (2021).

³⁹Bernick, supra note 28, at 857–58 (suggesting though not fully endorsing a justification for APA originalism based its “emerge[nce] from a decades-long public debate between members of all departments of the federal government”); Kovacs, supra note 22, at 1237, 1250; Pojanowski, supra note 28, at 890, 899.

40On the distinction between intensional and extensional approaches and an extended argument for preferring the latter in legal interpretation, see Eskridge et al., supra note 38, at 1525–34.  

41See Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900–1940, at 5 (2014) (discussing the pre-New Deal consensus favoring flexible agency decision making overseen by judicial review for abuse of process).

⁴²Id. at 4 (“Not surprisingly, the standard of review of findings of fact was the most contested issue of administrative law in the early twentieth century.”).

43See infra Section I.A; Shepherd, supra note 19, at 1570–81 (documenting initial support for an administrative court among the New Deal’s critics), 1582–83, 1602 (noting the critics’ turn towards public participation and stricter judicial review)

44See infra Sections I.B., I.C.

45See infra Section I.B.

46See infra Section I.B.

47See Present at the Creation: Regulatory Reform Before 1946, 38 Admin L. Rev. 507, 520 (1986) [hereinafter Present at the Creation] (transcribing remarks from Walter Gellhorn and K.C. Davis); Shepherd, supra note 19, at 1650–51; Peter L. Strauss, Speech, From Expertise to Politics: The Transformation of American Rulemaking, 31 Wake Forest L. Rev. 745, 750–52 (1996).  For the British background for the notice-and-comment review idea, see Rephael Stern, The British Origins of Informal Rulemaking: A Lost History of Anglo-American Administrative Law (Apr. 8, 2023) (unpublished manuscript) (on file with authors). 

48See infra Section I.B.

49See Shepherd, supra note 19, at 1645–47.

50Strauss, supra note 47, at 755–60. 

51See Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48–49 (1983) (faulting the NHTSA for not addressing an “alternative way of achieving the objectives of the Act” and for ignoring that the statutory purpose that “safety standards [should] not depend on current technology”).

52Kovacs, supra note 22, at 1210, 1243.

53U.S. Dep’t of Just., Attorney General’s Manual on the Administrative Procedure Act (1947).

54As the discussion in text makes clear, we do not find nearly as sharp a distinction among “pragmatic,” “common law,” and “originalist” interpretations of the APA as does the excellent survey in Christopher J. Walker & Scott T. MacGuidwin, Interpreting the Administrative Procedure Act: A Literature Review, 98 Notre Dame L. Rev. 1963 (2023). 

⁵⁵See, e.g., Duffy, supra note 23, at 118 (noting that the APA is a “broad, vaguely worded statute”)

56Kovacs, supra note 22, at 1208, 1254–57.  For more on Kovacs’s view of the APA as a shallow compromise, see Kathryn E. Kovacs, A History of the Military Authority Exception in the Administrative Procedure Act, 62 Admin. L. Rev. 673, 705 (2010) (“[A]ll parties involved in the APA’s passage understood that the Act was a compromise, and none were fully satisfied.”).

57See infra Section III.A.

58See infra Section III.A.

59See infra Section I.B.

60See infra Section III.C.

61See 5 U.S.C. § 702 (2018) (presuming judicial review of agency rules and announcing specific exceptions to review).

62323 U.S. 134 (1944). 

63325 U.S. 410 (1945). 

64322 U.S. 111 (1944).