Envisioning Administrative Procedure Act Originalism

57 Pages Posted: 15 Jun 2018 Last revised: 27 Jul 2018

Evan D. Bernick

Georgetown University Law Center

Date Written: May 25, 2018

Abstract

Much of our administrative law is governed by judicially-created “common law” doctrines that seem untethered to either the text or the history of the Administrative Procedure Act of 1946. In recent years, scholars have produced a number of articles questioning the consistency of long-settled administrative common-law doctrines and agency practices with the APA’s original meaning, and Congress is presently considering legislation that is designed to abolish common-law doctrines that require judicial deference to agencies. Because efforts to “turn back the clock” to 1946 could have a wide-ranging impact on administrative law doctrine, the regulatory activity that is governed by that doctrine, and the lives of Americans whose daily affairs are affected by that regulatory activity in countless ways, this turn towards “APA originalism” merits careful attention.

This Article considers what a full-fledged movement to restore a lost administrative Constitution might amount to in theory and practice. It constructs a provisional originalist methodology for interpreting the APA and considers some of the doctrinal implications of putting that methodology into institutional practice, evaluating several important administrative common-law doctrines to determine whether they can be squared with the original APA: “hard-look” arbitrariness review; “Chevron deference” to reasonable agency interpretations of ambiguous statutory language, and “Auer deference” to reasonable agency interpretations of ambiguous regulatory language; and the “logical outgrowth” rule. Finally, it sketches the terms of the normative debate over whether APA originalism ought to be adopted by judges and considers the prospects of that adoption actually taking place.

Keywords: constitutional interpretation, administrative law, Administrative Procedure Act, Chevron deference, Auer deference, administrative common law

JEL Classification: K10, K30, K39

Suggested Citation

Bernick, Evan D., Envisioning Administrative Procedure Act Originalism (May 25, 2018). Administrative Law Review, Vol. 70, No. 4, 2018. Available at SSRN: https://ssrn.com/abstract=3184813

Evan D. Bernick (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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