Textualism and the Administrative Procedure Act

Abstract

Can longstanding black letter administrative law doctrine interpreting the Administrative Procedure Act survive the attention of a textualist Supreme Court?  Signals from some of the current justices suggest perhaps not. In particular, many interpretations of the APA regarding notice-and-comment rulemaking requirements were adopted before the rise of the new textualism and seem to be in danger. This essay takes a closer look. Examining several doctrinal requirements, including the Portland Cement and State Farm doctrines, it argues that adhering to textualism in APA interpretation does not require upending existing administrative law doctrine. 

Keywords: Administrative Procedure Act, textualism, notice-and-comment, rulemaking, Supreme Court

JEL Classification: K2, K23, K41