TEXTUALISM AND THE ADMINISTRATIVE PROCEDURE ACT.

• Author: Hickman, Kristin E.

INTRODUCTION 2072 I. THE CHALLENGES POSED 2075 A. The APA's Textual Underdeterminacy 2075 B. Shades of Textualist Reasoning 2079 C. Which Context? 2081 D. A Statute of Standards Versus Rules 2083 E. The Role of Stare Decisis 2085 II. TEXTUALISM AND THE APA AT THE SUPREME COURT 2086 A. Florida East Coast Railway Eliminates Formal Rulemaking 2087 B. Vermont Yankee as a Textual Outer Boundary 2090 C. Little Sisters of the Poor and Interim-Final Rulemaking 2094 III. ADMINISTRATIVE LAW DOCTRINES AT RISK 2102 A. Notice and the Logical Outgrowth Test 2102 B. Data Disclosure and the Portland Cement Doctrine 2106 C. The Arbitrary and Capricious Standard and Hard Look Review 2108 D. Preambles and Addressing Significant Comments 2111 CONCLUSION 2113 INTRODUCTION

Justice Kagan famously said that "we're all textualists now." (1) She exaggerated, of course, but not by much. As she and others have recognized, the Supreme Court today approaches statutory interpretation differently than it did forty or fifty years ago, with substantially more attention paid to statutory text and much less to legislative history or judicial assessments of best policy outcomes. (2) What does the widespread acceptance of textualist methods for statutory interpretation mean for judicial review of the Administrative Procedure Act (APA)? (3)

Textualism and the APA--or at least contemporary understandings of its meaning (4)--seem headed for conflict. Adopted in 1946, (5) long before the rise of the new textualism, (6) the APA is what Larry Solum would describe as textually "underdetermined." (7) Like the U.S. Constitution, the APA includes some requirements that are quite detailed, (8) but many others that rely on terms that are undefined by the statute and sufficiently fuzzy that they seem more conceptual than instructional. (9) Whereas other statutes task agencies with elaborating meaning and resolving details through rules and regulations, (10) the APA is a statute of general applicability, with courts bearing the primary responsibility for its interpretation. (11) Many of the key cases that interpret the APA and provide the foundation for contemporary agency rulemaking were decided by judges who neither claimed to be textualists nor relied on textualist reasoning. (12) They developed standards and requirements to effectuate the APA's terms that, at first blush, may seem hard to square with the APA's text. (13) Others have suggested as much. (14)

Just as the APA is underdetermined, textualism is not monolithic. Judges and scholars who consider themselves textualists coalesce generally around certain definitional premises. One is a certain skepticism, though not necessarily an absolute rejection, of legislative history as tool of statutory interpretation. (15) Another holds that judges must enforce the text of clearly written statutes, even if the text seems contrary to statutory goals or claims regarding the enacting legislature's intentions. (16) Statutes are the product of compromises among legislators with competing preferences and goals, and departing from otherwise clear statutory text in favor of broader statutory goals risks upsetting those compromises. (17) Beyond those few areas of broad agreement, however, self-identified textualists diverge frcquendy, and often quite adamantly. The textualist label represents a range of views rather than a single, unified approach to statutory interpretation. (18) For that matter, depending on how they are written, different statutes may demand--explicitly or implicitly--different textualist approaches. (19) As Tara Leigh Grove has suggested, it matters "which textualism" courts apply. (20)

In recent years, the Supreme Court occasionally has applied a more limited approach to textualist reasoning (21) that, if applied to the APA, could expand the perceived gulf between textualism and existing administrative law doctrine. Our purpose with this Essay is to explore the implications of this trend for APA interpretation, particularly as it might apply to agency rulemaking. We do not purport to address critics of textualism as an interpretive methodology; we speak primarily to those who are persuaded of textualism's merits. We also will not try to resolve all the many disagreements about textualism's variations or the APA's meaning. For tiiat matter, we do not address whether a more limited textualist approach to statutory interpretation might be appropriate for statutes other than the APA. But for judges and scholars inclined to apply textualist reasoning to questions of APA interpretation, our goal is to refute claims that adhering to textualism requires rejecting many or even most longstanding interpretations of APA rulemaking requirements. More normatively, we are concerned that a version of textualism that reduces the APA's provisions, one by one, to their narrowest reading risks eroding APA rulemaking procedures to a degree that cannot possibly be reconciled with congressional intent. (22)

In Part I, we briefly elaborate the arguable conceptual challenges of APA interpretation using textualist methodology. In Part II, we examine a few key instances in which the Supreme Court has contemplated the APA's text. Taking the Court's trend toward a stricter or more limited textualism seriously, in Part III, we highlight several longstanding interpretations of the APA that could be in peril under that version of textualism. We also offer alternative textualist constructions of the APA's provisions that support those same longstanding interpretations. Given space limitations, we focus principally on provisions associated with agency rulemaking and judicial review thereof, leaving other APA interpretive questions for another day. Based on that analysis, we offer concluding thoughts that a more flexible textualism is more appropriate when interpreting the APA.

1. THE CHALLENGES POSED

   Appreciating the difficulties posed by the intersection of textualism and the APA requires at least some independent understanding of at least some of the nuances of each. We take them one at a time, beginning with the APA. We then reflect briefly on the further complication posed by stare decisis as textualism and the APA intersect.

   1. The APA's Textual Underdeterminacy

      In contemplating the exercise of statutory interpretation, Larry Solum categorizes types of statutory text as "determina[nt]," "indetermina[nt]," and "underdetermina[nt]." (23) Text that is determinant creates readily discernible bright line rules governing primary behavior. (24) Indeterminant text offers virtually no guidance whatsoever--i.e., "anything goes." (25) Underdeterminant text provides "some but not all of the legal content of the doctrines associated with a statute and determines some but not all of the applications of the statute to the set of all possible cases." (26) According to Solum, "[t]rue statutory determinacy and indeterminacy are rare or nonexistent. All or almost all statutes are underdeterminate with respect to at least some cases and issues." (27) But "underdeterminacy is a matter of degrees" that range from almost indeterminant to almost determinant. (28) In turn, undeterdeterminacy in statutory text can be categorized by various types. For example, some statutory text is ambiguous, meaning that it "has more than one possible meaning." (29) Other statutory text is "open textured," such that it has paradigmatic examples that are obviously covered but also "penumbral cases to which the statute may or may not apply"; the word "reasonable" is an example of a commonly-used, open-textured term. (30) Sometimes statutory underdeterminacy cannot be resolved "because the legislature did not make a choice" but rather merely "kickfed] the can down the road." (31) More often, however, statutory underdeterminacy can be resolved by considering text in context. (32)

      Some of the APA's terms and requirements are clear on their face. For example, a notice of proposed rulemaking must include the time and the place of public proceedings, (33) and a final rule must be published or served "not less than 30 days before its effective date" unless one of several listed statutory exceptions applies. (34) Many more of the APA's terms are open-textured, some classically so. For example, [section] 553 authorizes agencies to skip public notice and comment procedures when they find those procedures to be "impracticable, unnecessary, or contrary to the public interest." (35) The 1947 Attorney General's Manual describing the APA's provisions offers a few examples of when those conditions might exist, but courts are left mostly to define those terms for themselves. (36) Similarly--and critically for understanding how courts have interpreted the procedural requirements for notice-and-comment rulemaking--[section] 706(2) (A) calls upon reviewing courts to set aside agency actions they find to be "arbitrary" or "capricious." (37) These words are virtually meaningless when considered facially and in isolation. Taken in context, they communicate some amount of legal content. Regulatory choices made by flipping a coin obviously would be arbitrary and capricious. But real-world examples are rarely quite so stark. Thus, courts are left to decide for themselves not only whether but why a typical agency rule is or is not arbitrary and capricious.

      That the APA is underdetermined does not prevent courts from using textualist methods to clarify its meaning. The U.S. Constitution similarly combines occasional precision with often lofty, open-textured, and undefined words and phrases, but that has not precluded textualist analyses of its provisions. (38) As a professor, Antonin Scalia once observed that the APA functions as "a sort of superstatute, or subconstitution, in the field of administrative process." (39) Like the U.S. Constitution, subconstitutions are unlikely to go into granular detail about the various scenarios to which they might apply. Like the U.S...