Teaching the APA at 75

The Administrative Procedure Act (APA) celebrates its 75th birthday this year. To throw a party for someone of that vintage, we might put together a slideshow that depicts the major changes over the years—the key moments in one’s life. If you look just at the text of the APA, however, not much has changed since birth. Westlaw tells us that the APA has been amended 16 times over those 75 years. I think Westlaw is missing a few amendments, but that low number otherwise captures the enduring nature of the APA’s text.

That said, if you’re an administrative lawyer, you risk committing malpractice if you just read and apply the statute as written. There is a staggering mismatch between the APA’s text, on the one hand, and administrative law doctrine and regulatory practice, on the other. This divergence between text and reality is the signature aspect of the APA at 75, and an open question for its future.

In the lead essay in this symposium, Robert Gasaway leverages this open question to call for bold legislative reform, based on a coauthored law review article (with Ashley Parrish) and a Ramseyer comparative print that shows how they would amend the APA. Although my ambitions are much more modest, I too agree that the mismatch merits congressional attention and legislative modernization.

Indeed, this mismatch is poignant for those of us who teach Legislation and Regulation (“leg-reg”)—a course that is growing in popularity as a required first-year course in law schools across the nation. (Indeed, the rise of leg-reg may well be part of the APA’s legacy!) As the course title indicates, the first half focuses on legislation—or, more precisely, statutory interpretation. Students spend half a semester exploring how to read and interpret statutory text. They read dozens of opinions and learn that some version of textualism is the modern approach to statutory interpretation. As Justice Kagan famously put it, “we’re all textualists now.” Most of the hard work of interpretation, the students realize, entails resolving ambiguities in statutory text through a variety of interpretive tools, including canons of construction, arguments from statutory structure, context, and purpose, and reference to legislative and other statutory history.

Once the course reaches its halfway point, the attention turns from statutory interpretation to an introduction to the regulatory state. This is when the students encounter, often for the first time, the APA. I’ve taught this class for nearly a decade, and the APA always frustrates the students. Their statutory interpretation toolbox does little to help them understand how courts have interpreted the APA. Sometimes, courts have interpreted the text of the APA against the backdrop of existing precedent and common law. And other times, courts have added entirely new requirements to various sections of the APA. We spend a couple of weeks working through a number of examples where the statutory text differs substantially from how federal courts have interpreted—and in some cases rewritten—the APA.

I explore these textual mismatches in more detail in “The Lost World of the Administrative Procedure Act: A Literature Review,” my contribution to the George Mason Law Review’s APA at 75 symposium. I won’t repeat that literature review here. Instead, I highlight a few mismatch examples we cover in leg-reg.

As the students learn, the APA is divided into two parts: the first focuses on administrative process, the default rules of the road for federal regulatory actions; and the second details judicial review, the default rules for courts reviewing those agency actions. When it comes to administrative process, the APA divides agency actions into two broad modes: rulemaking and adjudication.

The rulemaking section puzzles students. When an agency’s governing statute requires an on-the-record hearing, the APA commands that the agency must engage in formal rulemaking. In other words, there’s a trial before the agency, where parties introduce evidence and put on and cross-examine witnesses. Having already taken civil procedure, the students can easily grasp this process. But they then discover that the Supreme Court, in United States v. Florida East Coast Railway, essentially read formal rulemaking out of the APA by requiring that the agency’s governing statute include the magic words “after a hearing” and “on the record.” Very few statutes include both, as Aaron Nielson has explored in his defense of formal rulemaking.

So what do we have left? Informal rulemaking, which is often called notice-and-comment rulemaking. Per the APA, informal rulemaking requires a “general notice of proposed rule making.” That notice must tell the public “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” The public then must have an opportunity to comment. After the public comment period, the agency issues a final rule that must include “a concise general statement of their basis and purpose.”

Congress should be the institution to modernize the APA. It should codify the good administrative common law that has developed, discard the bad, and make other improvements. Such modernization should also respond to the various developments in the administrative state since the APA’s enactment in 1946 . . .

Textually, this process seems simple. But the students quickly find out that notice-and-comment rulemaking is much more complicated and resource intensive. That notice of proposed rulemaking is anything but “general.” The agency must extensively explain its reasoning and the evidence on which it relies. Under the Portland Cement doctrine, the agency must make public the underlying data and evidence supporting the proposed rule. Nor is the final rule’s preamble “general” or “concise.” The agency must respond to all significant comments, as well as extensively demonstrate its reasoned decisionmaking. Failure to do so risks the rule’s invalidation on judicial review.

After spending the first half of the semester learning textualism, it’s jarring for students to realize that when it comes to the APA, the statutory text barely reflects the reality of regulatory practice. In class, we also cover agency adjudication under the APA, and the students find out that the vast majority of administrative hearings today take place outside of the formal hearing provisions of the APA. The statutory text tells us nothing about those procedures. Likewise, textual mismatches abound in the APA’s judicial review provisions, ranging from a presumption of reviewability, Chevron and Auer deference, and “hard look” or “thin rationality” arbitrary-and-capricious review to remedial wrinkles dealing with remand without vacatur and nationwide injunctions. Finally, as Kagan’s “Presidential Administration” turns 20 this year as well, I’d be remiss if I didn’t mention that the APA does not address centralized regulatory review. Dan Farber and Anne Joseph O’Connell examine that “lost world” of White House oversight in much greater detail elsewhere.

I should pause to underscore that I am not against many of these innovations as a policy matter. In a notice of proposed rulemaking, I want an agency to tell the public what it is doing in detail and to disclose the expert, data-driven analysis and evidence. The agency should have to start rulemaking again if the rule is not a logical outgrowth of the prior rule. The final rule should demonstrate that the agency considered and responded to significant comments of experts outside of the agency. To my mind, these are best practices that improve administrative governance—to encourage reasoned decisionmaking, transparency, accountability, predictability, fair notice, and other rule-of-law values. They are just absent from the text of the APA.

Putting aside the frustration leg-reg students confront when attempting to interpret the APA, what does this mismatch mean for the future of the APA? Kathryn Kovacs, among others, has argued that courts should return the APA to its textual foundations. By contrast, others, such as Gillian Metzger and Peter Strauss, have long argued that the APA has not and should not remain static, but it instead has evolved and should evolve judicially through administrative common lawmaking and in response to changes in the regulatory landscape.

It probably goes without saying that I do not share that dynamic statutory interpretation approach to interpreting the APA. But nor do I share the APA originalists’ view that the Supreme Court should overturn its longstanding interpretations of the APA. The pull of statutory stare decisis should be strong. Moreover, such judicial reform requires more than a textualist project. The reformers would need to carry out the daunting task of examining the historical, original meaning of the terms Congress included in the APA. If courts were to return the APA to its original understanding, much more work would need to be done to understand the common law backdrop against which Congress legislated. And the courts may also have to grapple with the complexities of what faithful interpretation entails for a statute enacted in a more purposivist (or at least less textualist) era.

Instead, as I have argued elsewhere, Congress should be the institution to modernize the APA. It should codify the good administrative common law that has developed, discard the bad, and make other improvements. Such modernization should also respond to the various developments in the administrative state since the APA’s enactment in 1946, including better regulation of agency adjudication, centralized regulatory review, and subregulatory guidance. Earlier this year in Regulation, for instance, I sketched out some of those potential legislative reforms in the context of agency adjudication.

In sum, the APA has endured for three-quarters of a century as the framework statute for the modern regulatory state. I expect it to live far beyond the century mark. Yet unless Congress seeks to modernize the APA, the mismatch between statutory text, on the one hand, and administrative doctrine and regulatory practice, on the other, will only increase. Maybe when we celebrate the APA at 100, we will need to take stock of how Congress modernized the statute since 2021.

This essay is based on the author’s remarks at the C. Boyden Gray Center for the Study of the Administrative State’s 75th Anniversary of the APA Conference and his contribution to the George Mason Law Review’s symposium on the subject.