INTERPRETING THE ADMINISTRATIVE PROCEDURE ACT: A LITERATURE REVIEW.

• Author: Walker, Christopher J.

INTRODUCTION 1964 I. COMPETING THEORIES OF APA INTERPRETATION 1966 A. APA Pragmatism 1966 B. Administrative Common Lawmaking 1971 C. APA Textualism 1976 D. APA Originalism 1982 II. A PATH FORWARD 1989 A. APA Originalism for Open Questions 1989 B. Statutory Stare Decisis for Settled Questions 1991 CONCLUSION 1996 INTRODUCTION

Enacted in 1946 as a "fierce compromise" after a decades-long political battle in Congress, (1) the Administrative Procedure Act (APA) established the default rules of the road for the modern administrative state. (2) Forty-five years ago, Justice Scalia noted that "the Supreme Court regarded the APA as a sort of superstatute, or subconstitution, in the field of administrative process: a basic framework that was not lightly to be supplanted or embellished." (3) Since then, Congress has done little to modernize the APA, even though there have been dramatic changes in regulatory practice. (4) Despite the lack of congressional action, the APA, like the U.S. Constitution, has evolved over the decades from changes in judicial interpretation, such that there are seemingly stark mismatches between the statutory text and modern judicial doctrine and regulatory practice. (5)

As the Supreme Court and lower courts have increasingly embraced some form of textualism and originalism when it comes to statutory interpretation generally, it is perhaps no surprise that calls to return to either the APA's statutory text or its original meaning (or both) have intensified in recent years. Some have called for a textualist revival of the APA, (6) and others have advocated for what has been dubbed "APA originalism." (7) The Justices have been tracking these debates when considering calls to eliminate Chevron deference, (8) to discard the Portland Cement doctrine, (9) and to reconsider the viability of national injunctions or universal vacaturs of agency rules (10)---just to provide a few examples.

In our contribution to this Symposium on the history of the APA, we survey the terrain of competing methodologies for interpreting the APA. Although the approaches to APA interpretation are varied and diverse, four rough though somewhat overlapping categories emerge. These categories in some ways evolve from one to the next, such that one may be tempted to tell a chronological evolutionary story. (11) But such an approach would oversimplify the state of play. Today, different judges and administrative law scholars have embraced and further developed all four approaches. Indeed, some even mix and match interpretive theories based on the specific statutory provisions at issue or at different points in their careers.

As detailed in Part I of this Essay, the first predominant interpretive approach is some version of textually constrained purposivism--or what we call APA pragmatism--which is an effort to read the statutory text to advance the values that motivated the enactment of the APA in the first place. (12) From APA pragmatism emerged a more dynamic or "living" interpretive approach to the APA--one that hews less to the statutory text and, instead, encourages the development of more wide-ranging administrative common law often motivated by perceived constitutional values. (13) In response to this more dynamic approach and the rise of textualism generally in statutory interpretation, courts and scholars have called for a return to textualism--and such calls for APA textualism have increased in recent years from both conservatives and liberals. (14) Perhaps tracking broader trends in statutory interpretation, the reform project for some scholars has shifted from formalist textualism to APA originalism, which involves a deeper examination of the context, history, and original understanding of the terms Congress included in the APA. (15)

Although the central purpose of this Essay is to provide a literature review and categorization of the competing methodologies for interpreting the APA, Part II of the Essay sketches out our middle-ground approach. We urge courts to answer open statutory questions based on text, structure, context, and the original understanding of the APA. In other words, APA originalism--not formal textualism--is the best path forward for open questions. More importantly, however, when it comes to interpretive questions courts have already answered, the pull of statutory stare decisis should be quite strong, and reform to those statutory precedents should be left largely to Congress. When dealing with a framework statute like the APA, moreover, the Supreme Court should also give substantial weight to settled interpretations of the APA in the circuit courts. Such an approach best advances rule-of-law values such as predictability, reliance, stability, and the separation of powers.

1. COMPETING THEORIES OF APA INTERPRETATION

   Courts and scholars have employed numerous techniques in interpreting the APA, each stressing to different degrees the text, history, structure, purposes, and practical effects of the APA. These varied interpretative approaches, however, can roughly be grouped into four theories: (A) APA pragmatism, (B) administrative common lawmaking, (C) APA textualism, and (D) APA originalism. In many ways, each subsequent interpretive theory evolved in response to the prior one (s), though all are still active and evolving theories today. This Part addresses each in turn.

   1. APA Pragmatism

      The predominant approach judges have historically employed when interpreting the APA has been a textually constrained purposivism. Under this approach, the text of the APA provides the ceiling, but where the text, structure, or context is ambiguous, courts adopt a reading of the text that best advances rule-of-law values in administrative law, such as accountability, consistency, efficiency, expertise, predictability, stability, and transparency. In that sense, perhaps the best label for this predominant approach is APA pragmatism."' APA pragmatists are likely to find more provisions ambiguous than APA textualists or originalists. But unlike administrative common-law jurists, those exercising this approach choose to work within the framework of the text of the APA.

      The judicial evolution of APA rulemaking provides a classic example of APA pragmatism. (17) After the Supreme Court essentially eliminated the highly proceduralized, trial-like mode of APA formal rulemaking in United States v. Florida East Coast Railway Co., the Supreme Court and lower courts read more formal procedures into the APA's informal rulemaking process. (18) We focus on three sets of those statutory precedents here, when it comes to informal "notice-and-comment" rulemaking.

      First, when agencies provide public notice in APA informal rulemaking, much more is required than the APA's textual requirement of "[g]eneral notice" of "either the terms or substance of the proposed rule or a description of the subjects and issues involved." (19) Courts have interpreted this statutory notice provision to require a detailed explanation of the proposed rule and a disclosure of the underlying rationales and supporting data. In Portland Cement Ass'n v. Ruckelshaus, the D.C. Circuit struck down an EPA rulemaking for failing to present data adequately justifying new emission standards. (20) The D.C. Circuit, making no reference to the APA throughout the opinion, noted that "[i]t is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of inadequate data, or on data that... is known only to the agency." (21) An APA textualist may reject such a doctrine. Indeed, as then-Judge Kavanaugh argued, the Portland Cement disclosure doctrine "stands on a shaky legal foundation (even though it may make sense as a policy matter in some cases)" because it "cannot be squared with the text of [section] 553 of the APA." (22) Yet it seems like a commonsense, pragmatic gloss on the APA's requirement that the agency provide the public with notice and an opportunity to be heard. (23)

      Second, unlike formal rulemaking, the APA does not require informal rulemaking to be "on the record." (24) As Kathryn Kovacs has observed, nothing in the informal rulemaking provisions of the APA suggests "anything resembling a record or docket for informal rulemaking" that must be maintained (much less publicly disclosed). (25) Notwithstanding the statutory text, the Supreme Court has repeatedly emphasized the requirement that an "administrative record [be] made." (26) As Jeffrey Lubbers has argued, "[t]he development of the concept of the rulemaking record or file has been one of the most significant changes in informal rulemaking procedure since the APA was enacted." (27) Indeed, this judicial development "has led to substantial investments by federal agencies to create online databases to facilitate public access to the proposed rulemaking, accompanying data and studies, and the public comments lodged," (28) Although the administrative record requirement seems to depart from the plain text, it certainly reinforces pragmatic and rule-of-law values in administrative law. It also arguably finds at least some textual support in the APA's judicial review provisions, which instruct courts to "review the whole record or those parts of it cited by a party." (29)

      Third, the Supreme Court and lower courts have read the informal rulemaking requirement of "a concise general statement of [its] basis and purpose" (30) in the final rule to require much more than that. For example, as part of this statement of basis and purpose (or preamble) , the Supreme Court has interpreted the APA to require that "[a] n agency must consider and respond to significant comments received during the period for public comment" (31) Accordingly, preambles to final rules today are voluminous, and have led to a cottage industry in the field of administrative law about how to interpret them. (32) Pragmatically, extended preambles and reason giving in final rules make a lot of sense...