A History of the Military Authority Exception in the Administrative Procedure Act

57 Pages Posted: 6 Sep 2012 Last revised: 15 Oct 2012

Kathryn E. Kovacs

Rutgers Law School

Date Written: September 5, 2010

Abstract

The Administrative Procedure Act of 1946 paves an essential avenue to the courthouse door for plaintiffs challenging military decision making, particularly those alleging that the military has violated individual civil liberties or federal environmental statutes. Yet, the APA does not authorize judicial review of “military authority exercised in the field in time of war.” This article provides a much needed and long overdue legislative historiography of that exemption, fitting it into context with the loss of faith in administrative expertise and fear of totalitarianism that accompanied World War II. The article then examines the provisions in the Articles of War from which the “military authority” exemption apparently was drawn. The final analysis is of the courts’ and commentators’ assumptions about the exemption, foremost the assumption that “in the field” connotes only the locus of combat. The article concludes that, although the “military authority” exemption appears to be quite narrow, Congress’ understanding of its chosen phrasing in 1946 would have been somewhat broader than that of a modern reader, and thus many courts and commentators’ assumptions about the exemption are flawed.

Keywords: Administrative Procedure Act, military authority

Suggested Citation

Kovacs, Kathryn E., A History of the Military Authority Exception in the Administrative Procedure Act (September 5, 2010). Administrative Law Review, Vol. 62, No. 3, 2010. Available at SSRN: https://ssrn.com/abstract=2142056

Kathryn E. Kovacs (Contact Author)

Rutgers Law School ( email )

Camden, NJ
United States

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