Movement Administrative Procedure

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Evan D. Bernick*

Introduction

On April 4, 1946, The Potters Herald, a Thursday weekly dedicated to labor and union news, published an editorial warning readers of pending legislation “which may seriously affect labor” despite not containing a “single word about labor” in its text.¹  This legislation would empower “anti-labor judges” to overturn decisions by the National Labor Relations Board.²  Despite its neutral appearance, it was in reality designed to “kick [labor and the NLRB] in the teeth” and would result in “a field day for the corporation lawyers.”³

The complained-of legislation was the Administrative Procedure Act of 1946 (APA).  From today’s vantage point, the editorial at first seems odd, even histrionic.  The APA was unanimously voted into law and has since its enactment operated as a “subconstitution”⁴ for the modern administrative state.  It has been described as having no particular ideological valence.⁵

But wait a bit.  The APA has attracted an increasing amount of left legal scrutiny in recent years.⁶  A growing body of evidence suggests that the regulatory process is dominated by business interests.⁷  More generally, left legal scholars have trained a critical eye on claims about the law’s ideological neutrality—and that of administrative law in particular.⁸  And left efforts to use the administrative state to address interrelated contemporary crises of economic precarity, systemic racial inequality, and environmental destruction must confront the APA.  Accordingly, the APA’s history, text, and doctrine is overdue for hard-look review that takes seriously the possibility that—as the editorial urged—its appearance of neutrality deceives.  This Article gives the APA a hard look through the lens of movement law—an approach to legal scholarship that is informed by and supportive of left social movements that seek to transform the political, economic, and social status quo.⁹

Part I summarizes the conventional account of the APA and ascendant left criticisms of its content and doctrine.  It then describes movement law’s substantive and methodological commitments, as well as how movement-law scholars have investigated the history of social movement activity around the administrative state and focused attention on the APA.

Part II provides an account of the political economy of the APA.  By “political economy” I mean to situate this account within a resurgent scholarly tradition that rejects a strict separation between “politics” and “the economy” and explores issues of power, wealth distribution, and democracy.¹⁰  I detail how the APA was shaped by a conception of democracy as interest-group competition, fear of communism, a southern congressional veto on social and economic legislation from which people of color might have benefited, and the elite bar’s values and interests.  It was conceived during liberal retreat from early New Deal efforts to fundamentally reshape the socioeconomic order, and its text and structure reflect its origins.

Part III contends that the APA has been judicially implemented in ways that are broadly consistent with its origins.  Part IV proposes guiding principles for an approach to administrative procedure that is fit to meet present crises and calls for our administrative constitution to be transformed in accordance with them.

Continue reading in the print edition . . .

©2023 Evan D. Bernick.  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.

*Assistant Professor of Law, Northern Illinois University College of Law.

1The McCarran-Sumners Bill, Potters Herald (E. Liverpool, Ohio), April 4, 1946, at 4.

2Id.

3Id.

4See Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 Sup. Ct. Rev. 345, 363.

5See, e.g., Cass R. Sunstein & Adrian Vermeule, Libertarian Administrative Law, 82 U. Chi. L. Rev. 393, 401 (2015).

6See generally Nicholas Bagley, The Procedure Fetish, 118 Mich. L. Rev. 345 (2019); Kate Andrias, An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act, 128 Yale L.J. 616 (2019); Jeremy K. Kessler, The Struggle for Administrative Legitimacy, 129 Harv. L. Rev. 718 (2016) (reviewing Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900–1940 (2014)); David Fontana, Essay, Reforming the Administrative Procedure Act: Democracy Index Rulemaking, 74 Fordham L. Rev. 81 (2005); Elizabeth Fisher & Sidney A. Shapiro, Administrative Competence: Reimagining Administrative Law (2020).

7See, e.g., Jason Webb Yackee & Susan Webb Yackee, A Bias Towards Business? Assessing Interest Group Influence on the U.S. Bureaucracy, 68 J. Pol. 128, 130–31 (2006); Wendy Wagner, Katherine Barnes & Lisa Peters, Rulemaking in the Shade: An Empirical Study of EPA’s Air Toxic Emission Standards, 63 Admin. L. Rev. 99, 102 (2011).

8See generally Corinne Blalock, Introduction: Law and the Critique of Capitalism, 12 S. ATL. Q. 223 (2022); Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784 (2020); Amy Kapczynski, The Lochnerized First Amendment and the FDA: Toward a More Democratic Political Economy: Response to the Columbia Law Review’s 2018 Symposium, 118 Colum. L. Rev. Online 179 (2018); K. Sabeel Rahman, Democracy Against Domination (2017).

9See Amna A. Akbar, Sameer M. Ashar & Jocelyn Simonson, Movement Law, 73 Stan. L. Rev. 821 (2021).  For a sampling of this literature, see, for example, Brandon Hasbrouck, Movement Judges, 97 N.Y.U. L. Rev. 631 (2022); Jocelyn Simonson, Police Reform Through a Power Lens, 130 Yale L.J. 778, 811–13 (2021); Kate Andrias & Benjamin I. Sachs, Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality, 130 Yale L.J. 546, 577–86 (2021); Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. L. Rev. 1787, 1845–76 (2019); Dorothy E. Roberts, The Supreme Court, 2018 Term—Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1 (2019); Daniel Farbman, Resistance Lawyering, 107 Calif. L. Rev. 1877 (2019); Sameer M. Ashar & Catherine L. Fisk, Democratic Norms and Governance Experimentalism in Worker Centers, 82 Law & Contemp. Probs., no. 3, 2019, at 141; Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405 (2018); Sameer M. Ashar, Movement Lawyers in the Fight for Immigrant Rights, 64 UCLA L. Rev. 1464 (2017); V.B. Dubal, Winning the Battle, Losing the War?: Assessing the Impact of Misclassification Litigation on Workers in the Gig Economy, 2017 Wis. L. Rev. 739, 749–58, 792–802; Alexi Nunn Freeman & Jim Freeman, It’s About Power, Not Policy: Movement Lawyering for Large-Scale Social Change, 23 Clinical L. Rev. 147, 161–66 (2016).

10See Britton-Purdy et al., supra note 8, at 1784, 1792.