The Lost World of the Administrative Procedure Act: A Literature Review

Abstract

Despite dramatic changes in the regulatory state over the last seventy-five years, Westlaw reports that Congress has only amended the Administrative Procedure Act (APA) sixteen times since its enactment in 1946. But that does not mean the APA has remained unchanged. The statutory text bears little resemblance to modern administrative law doctrine and regulatory practice. In response to developments in administrative governance, federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. As part of the George Mason Law Review’s Administrative Procedure Act at 75 Symposium, this Essay seeks to chronicle these mismatches between statutory text and doctrinal and regulatory reality. It focuses on the APA’s administrative procedure and judicial review provisions, as well as key aspects of presidential administration that operate outside of the APA. Through presenting this annotation and literature review of the lost world of the APA, the Essay identifies areas for further scholarly attention, potential legislative reform, and perhaps even judicial engagement.

Keywords: Administrative Procedure Act, APA, administrative law, adjudication, rulemaking, judicial review, Chevron, nationwide injunctions, remedies