Notre Dame Law Review

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Emily S. Bremer*

Introduction

The Administrative Procedure Act (APA) is a profoundly important statute.  Enacted in 1946 and rarely amended since that time, it provides the statutory backbone for the field of administrative law.¹  Imbued with quasi-constitutional character, the APA has been recognized as a superstatute.²  The standard account of the statute’s emergence, which comes out of revisionist history published in the 1990s, emphasizes the APA’s political dimension, viewing the statute principally as a hard-fought compromise to preserve the New Deal.³  This account has overshadowed an account of the APA based on the statute’s internal logic and meaning, which was supplied by a rich body of pre-APA administrative law and the actual procedures and practices of pre-APA administrative agencies.⁴  Especially important in understanding the agencies’ contribution was the work of the Attorney General’s Committee on Administrative Procedure.  Convened in 1939 at President Franklin Delano Roosevelt’s request, the Committee prepared twenty-seven monographs examining the procedures and practices of existing federal administrative agencies.⁵  These monographs informed a 474-page report to Congress, which included proposed legislation that was introduced into Congress and ultimately became the APA.⁶  These materials provided the “intellectual foundation” for the APA.⁷  Read with this rich context in mind, the statute emerges as a carefully constructed, complex blend of codification, reform, and blueprint for the future. 

Despite the deserved regard the APA receives, its procedural provisions have had more mixed success than is commonly acknowledged.  By procedural provisions, I mean the parts of the APA that establish minimum procedural requirements for the two principal types of agency action: rulemaking and adjudication.⁸  This Essay focuses on these provisions.⁹  Over the last several years, I have examined these provisions and the agency practices that inspired them “in gruesome detail.”¹⁰  I undertook this project after nearly fifteen years of studying contemporary law and agency practices in rulemaking and adjudication.  In administrative law, it can be easy to miss the forest for the trees.  This Essay takes a step back from the trees, i.e., the technical details of the APA and the processes of individual agencies that are my usual subject of study, to reflect more broadly on the successes, failures, and future of the APA.  

This Essay argues that the APA has failed in adjudication but succeeded spectacularly in rulemaking.  In both contexts, the APA’s goal was to establish uniform minimum procedures, which would reform existing agency practices and provide a framework for the future.  In adjudication, that goal has not been realized.  Most adjudicatory hearings are not conducted under the APA’s hearing provisions, uniformity is wholly lacking, and what today remains of the APA’s hearing regime in practice appears to be collapsing.¹¹  In rulemaking, by contrast, the APA’s informal, notice-and-comment process has been firmly established as the procedure for the development, modification, and repeal of administrative regulations.  Agency-specific rulemaking procedures are exceedingly rare and widely despised, and the APA has supplied a foundation for the development of a robust body of administrative common law.¹²  While there are challenges in rulemaking, they are relatively minor compared to the problems in agency adjudication, and they can be addressed through the application of a uniform legal regime. 

This Essay’s principal aim is to explore why the APA has been more successful in rulemaking than in adjudication. Uncovering these reasons may help to illuminate the conditions necessary for a framework statute to succeed, as well as the circumstances that may limit or prevent its success.

First, Part I of this Essay argues that the APA’s success in adjudication was limited because the statute did not, as is typically assumed, settle deep-seated disagreement about the need for or essential content of uniform minimum procedural requirements for adjudicatory hearings.  Moreover, opponents of the APA’s hearing regime were aided in resisting the law because of underappreciated difficulties associated with the project of reforming pre-existing law and practice.  These difficulties included: (1) the inherent messiness of the drafters’ use of creative codification to construct the APA; (2) the ambiguity produced by Congress’s failure to make conforming amendments to pre-APA statutes that conflicted with the APA’s new regime; and (3) the extraordinary force of institutional inertia.  The result was a complex legal regime with sufficient uncertainty to afford space for a long-simmering preference for procedural informality to persist and take root within the executive establishment, Congress, and the private bar.  Over decades, as I have documented elsewhere, the result has been the emergence of a norm of adjudicatory exceptionalism that is fundamentally at odds with the APA’s goal of establishing a uniform procedural regime for adjudicatory hearings.¹³

Next, Part II argues that the APA was more successful in rulemaking because in this context it was prescient, establishing a framework several decades before it was widely needed.  Here, the APA codified best practices in an area in which the development of both the law and administrative practices was nascent.  When rulemaking became the preferred mode of agency policymaking in the 1960s and ’70s, the APA’s notice-and-comment requirements were attractively minimalist in comparison to its hearing regime.  This helped to entice agencies to shift from adjudication to rulemaking and, over time, the APA’s provisions proved successful in providing a statutory substrate necessary for the development of both agency practice and a robust body of administrative common law. 

Finally, Part III offers a warning for the future interpretation of the APA.  Over the last several years, my deep dive into the statute’s research foundation has clarified to me that much—maybe most—of the APA’s meaning is supplied by background principles and the institutional context from which the statute emerged.  When the statute was first enacted, the core principles grounded in this rich context were well understood within the legal profession.  In recent decades, however, that underlying knowledge has been lost and replaced with new background understandings that would have been foreign at the time the APA was enacted.¹⁴  In today’s textualist era, this presents a real and increasing danger that a shallow textualist approach to interpreting the APA will continue to warp the statute’s meaning.

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©2023 Emily S. Bremer.  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 author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor of Law, University of Notre Dame Law School.

1See Christopher J. Walker, Essay, Modernizing the Administrative Procedure Act, 69 Admin. L. Rev. 629, 633–38 (2017) (describing the APA’s postenactment evolution).

2Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 Sup. Ct. Rev. 345, 363; see also Kathryn E. Kovacs, Superstatute Theory and Administrative Common Law, 90 Ind. L.J. 1207, 1209 (2015); Emily S. Bremer, The Unwritten Administrative Constitution, 66 Fla. L. Rev. 1215 (2014).  The theory of superstatutes was developed by Professors William N. Eskridge, Jr. & John Ferejohn.  See William N. Eskridge, Jr. & John Ferejohn, A Republic of Statutes: The New American Constitution (2010); William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 Duke L.J. 1215 (2001); William N. Eskridge, Jr. & John Ferejohn, The APA as a Super-Statute: Deep Compromise and Judicial Review of Notice-and-Comment Rulemaking, 98 Notre Dame L. Rev. 1893 (2023).

3See George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557 (1996); see also McNollgast, The Political Origins of the Administrative Procedure Act, 15 J.L., Econ. & Org. 180 (1999).

4Reconciling the traditional account of legal scholars with the more recent insights provided by positive political theory (PPT) is a difficult if fascinating endeavor.  See, e.g., Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749 (2007) (examining the relationship between procedures and politics in the development and operation of administrative law and critiquing the PPT interventions); McNollgast & Daniel B. Rodriguez, Administrative Law Agonistes, 108 Colum. L. Rev. Sidebar 15 (2008) (responding to Professor Bressman’s article).

5See Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. 377, 396–42 (2021) [hereinafter Bremer, Rediscovered Stages]; Emily S. Bremer, The Undemocratic Roots of Agency Rulemaking, 108 Cornell L. Rev. 69, 90–94 (2022) [hereinafter Bremer, Undemocratic Roots].

6See Comm. on Admin. Proc., Administrative Procedure in Government Agencies, S. Doc. No. 77-8, at 191–202 (1941) [hereinafter 1941 Attorney General Report].

7Present at the Creation: Regulatory Reform Before 1946, 38 Admin. L. Rev. 511, 513–14 (1986) (emphasis omitted) (statement of Professor K.C. Davis).

8See 5 U.S.C. § 551(4)–(5) (2018) (defining rulemaking); id. § 551(6)–(7) (defining adjudication); id. § 553 (establishing minimum procedural requirements for rulemaking); id. § 554 (establishing minimum procedural requirements for adjudication); id. §§ 556–557 (establishing minimum procedural requirements for hearings).

9This Essay thus does not address, for example, the APA’s public information provisions (more commonly referred to as the Freedom of Information Act (FOIA)), see 5 U.S.C. § 552 (2018), or its judicial review provisions, see id. §§ 701–706.

10Gary Lawson, Teacher’s Manual to Federal Administrative Law 113 (9th ed. 2022).

11See generally Bremer, Rediscovered Stages, supra note 5; Emily S. Bremer, Reckoning with Adjudication’s Exceptionalism Norm, 69 Duke L.J. 1749 (2020) [hereinafter Bremer, Reckoning]; Emily S. Bremer, The Exceptionalism Norm in Administrative Adjudication, 2019 Wis. L. Rev. 1351 [hereinafter Bremer, Exceptionalism Norm]; Jill E. Family, A Lack of Uniformity, Compounded, in Immigration Law, 98 Notre Dame L. Rev. 2115 (2023).

12See Jack M. Beermann, Common Law and Statute Law in Administrative Law, 63 Admin. L. Rev. 1 (2011); Kenneth Culp Davis, Administrative Common Law and the Vermont Yankee Opinion, 1980 Utah L. Rev. 3; John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113 (1998); Gillian E. Metzger, Foreword, Embracing Administrative Common Law, 80 Geo. Wash. L. Rev. 1293 (2012).

13See Bremer, Exceptionalism Norm, supra note 11; Bremer, Reckoning, supra note 11, at 1758.

14This phenomenon has contributed substantially to the APA’s failure in adjudication—and has made that failure invisible to most administrative lawyers.  See generally Bremer, Rediscovered Stages, supra note 5.