The Evolving APA and the Originalist Challenge

39 Pages Posted: 19 Oct 2021 Last revised: 17 Nov 2021

See all articles by Ronald M. Levin

Ronald M. Levin

Washington University in St. Louis - School of Law

Date Written: October 18, 2021

Abstract

This article, written for a symposium marking the seventy-fifth anniversary of the Administrative Procedure Act (APA), discusses the manifold ways in which courts have creatively interpreted the APA’s provisions on rulemaking, adjudication, and judicial review. Many of these interpretations seem to be barely, if at all, consistent with the intentions of the Act’s drafters and with standard principles of statutory construction. They can, however, be defended as pragmatic judicial efforts to keep up with the evolving needs of the regulatory state, especially in light of Congress’s persistent failure to take charge of updating the Act on its own. At this point, a large-scale effort to undo these judicial innovations would be disruptive.

Nevertheless, recent court decisions and public law scholarship have displayed increasing interest in originalist and formalist methods of statutory interpretation, and this development potentially threatens the continued survival of many of the courts’ glosses on the APA. In order to evaluate where such reasoning could lead, this article critically examines the work of three authors who have advocated what may be described as “APA originalism.” The article highlights difficulties with these authors’ positions and concludes that a program of APA originalism is unlikely to attract broad support.

Keywords: Administrative Procedure Act, originalism, administrative law, statutory interpretation, rulemaking, administrative adjudication, judicial review

Suggested Citation

Levin, Ronald M., The Evolving APA and the Originalist Challenge (October 18, 2021). Washington University in St. Louis Legal Studies Research Paper No. 21-10-02, Chicago-Kent Law Review, Vol. 97, No. 1, 2022, Available at SSRN: https://ssrn.com/abstract=3944985

Ronald M. Levin (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
314-935-6490 (Phone)
314-935-5356 (Fax)

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