MOVEMENT ADMINISTRATIVE PROCEDURE.

• Author: Bernick, Evan D.

INTRODUCITON

On April 4, 1946, The Potters Herald, a Thursday weekly dedicated to labor and union news, published an editorial warning readers of pending legislation "which may seriously affect labor" despite not containing a "single word about labor" in its text. (1) This legislation would empower "anti-labor judges" to overturn decisions by the National Labor Relations Board. (2) Despite its neutral appearance, it was in reality designed to "kick [labor and the NLRB] in the teeth" and would result in "a field day for the corporation lawyers." (3)

The complained-of legislation was the Administrative Procedure Act of 1946 (APA). From today's vantage point, the editorial at first seems odd, even histrionic. The APA was unanimously voted into law and has since its enactment operated as a "subconstitution" (4) for the modern administrative state. It has been described as having no particular ideological valence. (5)

But wait a bit. The APA has attracted an increasing amount of left legal scrutiny in recent years. (6) A growing body of evidence suggests that the regulatory process is dominated by business interests. (7) More generally, left legal scholars have trained a critical eye on claims about the law's ideological neutrality--and that of administrative law in particular. (8) And left efforts to use the administrative state to address interrelated contemporary crises of economic precarity, systemic racial inequality, and environmental destruction must confront the APA. Accordingly, the APA's history, text, and doctrine is overdue for hard-look review that takes seriously the possibility that--as the editorial urged--its appearance of neutrality deceives. This Article gives the APA a hard look through the lens of movement law--an approach to legal scholarship that is informed by and supportive of left social movements that seek to transform the political, economic, and social status quo. (9)

Part I summarizes the conventional account of the APA and ascendant left criticisms of its content and doctrine. It then describes movement law's substantive and methodological commitments, as well as how movement-law scholars have investigated the history of social movement activity around the administrative state and focused attention on the APA.

Part II provides an account of the political economy of the APA. By "political economy" I mean to situate this account within a resurgent scholarly tradition mat rejects a strict separation between "politics" and "the economy" and explores issues of power, wealth distribution, and democracy. (10) I detail how the APA was shaped by a conception of democracy as interest-group competition, fear of communism, a southern congressional veto on social and economic legislation from which people of color might have benefited, and the elite bar's values and interests. It was conceived during liberal retreat from early New Deal efforts to fundamentally reshape the socioeconomic order, and its text and structure reflect its origins.

Part III contends that the APA has been judicially implemented in ways that are broadly consistent with its origins. Part IV proposes guiding principles for an approach to administrative procedure that is fit to meet present crises and calls for our administrative constitution to be transformed in accordance with them.

1. THE ADMINISTRATIVE CONSTITUTION AND ITS CRITICS

   In Wong Yang Sung v. McGrath, (11) Justice Robert Jackson wrote of the APA that it "represents a long period of study and strife... settles long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest." (12) In this presentation the APA appears as the product of careful deliberation, represented a compromise, and established a settlement that was ideologically neutral. Justice Jackson's origin story has been perpetuated through the Supreme Court's caselaw; (13) but it has also come under criticism from left legal scholars.

   1. The Official Story

      Justice Jackson depicts the APA as a carefully considered product of nearly two decades of study that was animated by bipartisan "[c]oncern over administrative impartiality." (14) In 1937, President Franklin Delano Roosevelt convened a Committee on Administrative Management that recommended a separation of investigative and prosecutorial functions within agencies; (15) two years later, Roosevelt directed the Attorney General to create a Committee on Administrative Procedure "to review the entire administrative process... and to recommend improvements, including the suggestion of any needed legislation." (16) On Justice Jackson's account, Roosevelt's 1940 veto of a "comprehensive and rigid prescription of standardized procedures for administrative agencies"--known as the Walter-Logan Bill--reflected Roosevelt's desire to enable the Committee's experts to complete their work "in this complicated field." (17)

      When Congress returned to procedural reform after World War II, Justice Jackson describes its work as "painstaking," particularly in its "consideration and hearing... of agency interests." (18) The proposed APA was accompanied by a favorable report from the Department of Justice that noted revisions made in response to agency criticisms. (19) The overall impression Justice Jackson conveys is one of utmost care to balance competing interests.

      Justice Jackson's account of the APA begins with controversy and ends with compromise. "Congress" and "[t]he Executive Branch" became concerned about the administrative state's growth and disorganization and demanded reform. (20) Justice Jackson contrasts the APA with the Walter-Logan Bill by noting the consultation of agency opinions during the APA's framing, as well as revisions in response to those criticisms. (21) Finally, Justice Jackson notes that Democratic President Harry Truman signed the APA into law after "[i]t passed both Houses without opposition." (22)

      At points Justice Jackson's account comes close to suggesting a congressional consensus concerning not only the need for but the substance of administrative reform. Subsequent scholarship has converged on the position that no such consensus existed; rather, the APA emerged from roiling New Deal politics in which the opposing sides fought to exhaustion. (23) The ascendant view is that Justice Jackson's allusions to "hard-fought contentions" paint a more accurate picture. (24)

      Finally, Justice Jackson depicts the APA as ideologically neutral. A response to concerns about "arbitrary" and "biased" agency decisionmaking, the APA was designed to promote reasonable, impartial administration. Who could possibly be against that? Further, if the APA was not in fact neutral as to the value-laden questions that divided proponents and opponents of the New Deal, how could it have passed without opposition at all?

      Consider Cass Sunstein and Adrian Vermeule's criticisms of what they term "libertarian administrative law"--a D.C.-Circuit-spear-headed "attempt to compensate for perceived departures during the New Deal from the baseline of the original constitutional order" by "us[ing] administrative law to push and sometimes shove policy in libertarian directions." (25) Sunstein and Vermeule contend that libertarian administrative law is "in grave tension with the foundations of the APA and of administrative law"' (26) because those foundations have no "identifiable ideological valence." (27)

      Sunstein and Vermeule's insistence that the APA and administrative common law is not organized by "any kind of politicized master principle" is mainstream, and ideological neutrality has been elsewhere used to legitimate the statute. (28) Thus, Daniel Ernst casts the APA as an expression of an "emerging consensus" among lawyers concerning the procedures necessary to keep the regulatory state within the bounds of the rule of law. (29) He contends that the APA constitutes a rejection of extreme alternatives on both sides of the New Deal. (30)

   2. Criticism

      The official story has increasingly come under challenge. Criticisms have centered on the role of the American Bar Association (ABA) in brokering the purported compromise, the APA's place in a postwar political era characterized by retreat from early New Deal commitments, and the ways in which the APA's processes have been dominated in practice by concentrated business interests.

      In a review of Daniel Ernst's Tocqueville's Nightmare, Jeremy Kessler contends that Ernst's account of a lawyerly consensus around administrative reform is more disconcerting than reassuring. (31) If Ernst is correct to view the APA "mainly as a 'codification' of the earlier 'entente' between courts and agencies that the legal profession had brokered by 1940," it does not follow that "anyone else was particularly happy about these lawyers' architectural choices." (32) The result would certainly not have been viewed as a compromise by "more left-wing political, economic, and legal voices" who "viewed the bar... as a major threat to a socially and economically egalitarian society." (33)

      Other scholars have situated the APA alongside contemporaneous legislation to question its ideological neutrality. Kate Andrias has detailed how, well into the 1940s, "[s]ignificant elements of the labor movement, along with Progressive reformers and allies in Congress and the executive branch," favored an approach to administrative decisionmaking that selectively empowered particular representative organizations. (34) The Fair Labor Standards Act originally created tripartite industry committees through which employers, unions, and the public would set minimum wages on an industry-by-industry basis with a statutorily defined range, thus "embod[ying] a commitment to empowering worker organizations in the political economy." (35)

      Not so the APA. The APA's notice-and-comment rulemaking process requires unions to "compete with business organizations and economic elites" on formally equal participatory...