Interpreting the Administrative Procedure Act: A Literature Review

34 Pages Posted: 30 Jan 2023 Last revised: 7 Jul 2023

See all articles by Christopher J. Walker

Christopher J. Walker

University of Michigan Law School

Scott MacGuidwin

University of Michigan Law School

Date Written: January 28, 2023

Abstract

The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.

As part of the Notre Dame Law Review’s Symposium on the History of the Ad- ministrative Procedure Act and Judicial Review, this Essay provides a literature review of the competing methodologies for interpreting the APA: textualism, originalism, purposivism (or pragmatism), and a more dynamic or living approach that encourages administrative common law. This Essay concludes by embracing a middle-ground approach: The Supreme Court (and lower courts) should answer open statutory questions based on the text, structure, context, and original understanding of the APA. But when it comes to interpretive questions courts have already answered, the pull of statutory stare decisis should be quite strong, and reform to those precedents should be left largely to Congress. This approach best advances administrative law’s rule-of-law values such as predictability, reliance, stability, and the separation of powers.

Keywords: Administrative Procedure Act, APA, Administrative Law, Textualism, Pragmatism, Purposivism, Common Law, Originalism, Stare Decisis, Judicial Review

Suggested Citation

Walker, Christopher J. and MacGuidwin, Scott, Interpreting the Administrative Procedure Act: A Literature Review (January 28, 2023). Notre Dame Law Review, Vol. 98, pp. 1963-1996, 2023, U of Michigan Public Law Research Paper 23-015, U of Michigan Law & Econ Research Paper No. 23-015, Available at SSRN: https://ssrn.com/abstract=4340363

Christopher J. Walker (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

HOME PAGE: http://www.chrisjwalker.com

Scott MacGuidwin

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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