Interpreting the Administrative Procedure Act: A Literature Review

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Christopher J. Walker* & Scott T. MacGuidwin**

The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946.  Yet Congress has done little to modernize the APA in those intervening seventy-seven years.  That does not mean the APA has remained unchanged.  Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action.  Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years.  “APA originalism” projects abound. 

As part of the Notre Dame Law Review’s Symposium on the History of the Administrative Procedure Act and Judicial Review, this Essay provides a literature review of the competing methodologies for interpreting the APA: textualism, originalism, purposivism (or pragmatism), and a more dynamic or living approach that encourages administrative common law.  This Essay concludes by embracing a middle-ground approach: The Supreme Court (and lower courts) should answer open statutory questions based on the text, structure, context, and original understanding of the APA.  But when it comes to interpretive questions courts have already answered, the pull of statutory stare decisis should be quite strong, and reform to those precedents should be left largely to Congress.  This approach best advances administrative law’s rule-of-law values such as predictability, reliance, stability, and the separation of powers.

Introduction

Enacted in 1946 as a “fierce compromise” after a decades-long political battle in Congress,¹ the Administrative Procedure Act (APA) established the default rules of the road for the modern administrative state.²  Forty-five years ago, Justice Scalia noted that “the Supreme Court regarded the APA as a sort of superstatute, or subconstitution, in the field of administrative process: a basic framework that was not lightly to be supplanted or embellished.”³  Since then, Congress has done little to modernize the APA, even though there have been dramatic changes in regulatory practice.⁴  Despite the lack of congressional action, the APA, like the U.S. Constitution, has evolved over the decades from changes in judicial interpretation, such that there are seemingly stark mismatches between the statutory text and modern judicial doctrine and regulatory practice.⁵

As the Supreme Court and lower courts have increasingly embraced some form of textualism and originalism when it comes to statutory interpretation generally, it is perhaps no surprise that calls to return to either the APA’s statutory text or its original meaning (or both) have intensified in recent years.  Some have called for a textualist revival of the APA,⁶ and others have advocated for what has been dubbed “APA originalism.”⁷  The Justices have been tracking these debates when considering calls to eliminate Chevron deference,⁸ to discard the Portland Cement doctrine,⁹ and to reconsider the viability of national injunctions or universal vacaturs of agency rules¹⁰—just to provide a few examples.

In our contribution to this Symposium on the history of the APA, we survey the terrain of competing methodologies for interpreting the APA.  Although the approaches to APA interpretation are varied and diverse, four rough though somewhat overlapping categories emerge.  These categories in some ways evolve from one to the next, such that one may be tempted to tell a chronological evolutionary story.¹¹  But such an approach would oversimplify the state of play.  Today, different judges and administrative law scholars have embraced and further developed all four approaches.  Indeed, some even mix and match interpretive theories based on the specific statutory provisions at issue or at different points in their careers. 

As detailed in Part I of this Essay, the first predominant interpretive approach is some version of textually constrained purposivism—or what we call APA pragmatism—which is an effort to read the statutory text to advance the values that motivated the enactment of the APA in the first place.¹²  From APA pragmatism emerged a more dynamic or “living” interpretive approach to the APA—one that hews less to the statutory text and, instead, encourages the development of more wide-ranging administrative common law often motivated by perceived constitutional values.¹³  In response to this more dynamic approach and the rise of textualism generally in statutory interpretation, courts and scholars have called for a return to textualism—and such calls for APA textualism have increased in recent years from both conservatives and liberals.¹⁴ Perhaps tracking broader trends in statutory interpretation, the reform project for some scholars has shifted from formalist textualism to APA originalism, which involves a deeper examination of the context, history, and original understanding of the terms Congress included in the APA.¹⁵

Although the central purpose of this Essay is to provide a literature review and categorization of the competing methodologies for interpreting the APA, Part II of the Essay sketches out our middle-ground approach.  We urge courts to answer open statutory questions based on text, structure, context, and the original understanding of the APA.  In other words, APA originalism—not formal textualism—is the best path forward for open questions.  More importantly, however, when it comes to interpretive questions courts have already answered, the pull of statutory stare decisis should be quite strong, and reform to those statutory precedents should be left largely to Congress.  When dealing with a framework statute like the APA, moreover, the Supreme Court should also give substantial weight to settled interpretations of the APA in the circuit courts.  Such an approach best advances rule-of-law values such as predictability, reliance, stability, and the separation of powers.

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©2023 Christopher J. Walker & Scott T. MacGuidwin.  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.

*Professor of Law, University of Michigan Law School.

**J.D., Class of 2023, University of Michigan Law School; Law Clerk to Sixth Circuit Judges Eric E. Murphy (2023–24) and Jeffrey S. Sutton (2024–25).

1George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557, 1560 (1996).  But see Evan D. Bernick, Movement Administrative Procedure, 98 Notre Dame L. Rev. 2177, 2181, 2181–83 (2023) (detailing how “[t]he official story” of deliberation, compromise, and ideological neutrality with regard to the enactment of the APA “has increasingly come under challenge” from liberal-left scholars); 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, 1912–23 (2023) (complicating Shepherd’s account of the APA founding and arguing that the APA should be viewed more as a “deep” compromise).  See generally Walter Gellhorn, The Administrative Procedure Act: The Beginnings, 72 Va. L. Rev. 219 (1986).

2Administrative Procedure Act of 1946, Pub. L. No. 79-404, 60 Stat. 237 (codified as amended at 5 U.S.C. §§ 551–59, 701–06 (2018)).

3Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 Sup. Ct. Rev. 345, 363 (1978); see also Kathryn E. Kovacs, Superstatute Theory and Administrative Common Law, 90 Ind. L.J. 1207, 1209 (2015) (drawing on William N. Eskridge, Jr. & John Ferejohn, A Republic of Statutes: The New American Constitution (2010) to argue that the APA is a “superstatute”).

4See, e.g., Daniel A. Farber & Anne Joseph O’Connell, The Lost World of Administrative Law, 92 Tex. L. Rev. 1137, 1140 (2014) (surveying the “increasing mismatch between the suppositions of modern administrative law and the realities of modern regulation”).

5This is the third in a series of essays by one of us that explores the evolution of the APA over the years.  The first reviews the statutory amendments to the APA since its enactment in 1946 and assesses various legislative reform proposals to modernize the APA.  See Christopher J. Walker, Essay, Modernizing the Administrative Procedure Act, 69 Admin. L. Rev. 629 (2017) [hereinafter Walker, Modernizing the APA].  The second chronicles the mismatches between the text of the APA and doctrinal and regulatory reality today.  See Christopher J. Walker, The Lost World of the Administrative Procedure Act: A Literature Review, 28 Geo. Mason L. Rev. 733 (2021) [hereinafter Walker, Lost World of the APA].  That second essay left for another day the task of reviewing the literature on the various methodologies for interpreting the APA.  See id. at 737.  We turn to that project in this Essay.

6Infra Section I.C.

7Infra Section I.D. 

8See, e.g., Buffington v. McDonough, 143 S. Ct. 14, 16–18 (2022) (Gorsuch, J., dissenting from the denial of certiorari).

9See, e.g., Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 245–47 (D.C. Cir. 2008) (Kavanaugh, J., concurring in part, concurring in the judgment in part, and dissenting in part).

10See, e.g., Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant of stay).

11Cf. Beau J. Baumann, The Force of Law After Kisor, 42 Pace L. Rev. 24 (2021) (adopting a more chronological evolutionary story when exploring how courts have interpreted “force of law” provisions in the APA).

12See infra Section I.A.

13See infra Section I.B.

14See infra Section I.C.

15See infra Section I.D.