THE ADMINISTRATIVE PROCEDURE ACT: FAILURES, SUCCESSES, AND DANGER AHEAD.

• Author: Bremer, Emily S.

INTRODUCTION 1873 I. A FAILED EFFORT TO REFORM ADJUDICATORY HEARINGS 1877 II. A PRESCIENT FRAMEWORK FOR RULEMAKING 1884 III. THE GROWING THREAT OF A SHALLOW TEXTUALISM 1887 CONCLUSION 1891 INTRODUCTION

The Administrative Procedure Act (APA) is a profoundly important statute. Enacted in 1946 and rarely amended since that time, it provides the statutory backbone for the field of administrative law. (1) Imbued with quasi-constitutional character, the APA has been recognized as a superstatute. (2) The standard account of the statute's emergence, which comes out of revisionist history published in the 1990s, emphasizes the APA's political dimension, viewing the statute principally as a hard-fought compromise to preserve the New Deal. (3) This account has overshadowed an account of the APA based on the statute's internal logic and meaning, which was supplied by a rich body of pre-APA administrative law and the actual procedures and practices of pre-APA administrative agencies. (4) Especially important in understanding the agencies' contribution was the work of the Attorney General's Committee on Administrative Procedure. Convened in 1939 at President Franklin Delano Roosevelt's request, the Committee prepared twenty-seven monographs examining the procedures and practices of existing federal administrative agencies. (5) These monographs informed a 474-page report to Congress, which included proposed legislation that was introduced into Congress and ultimately became the APA. (6) These materials provided the "intellectual foundation" for the APA. (7) Read with this rich context in mind, the statute emerges as a carefully constructed, complex blend of codification, reform, and blueprint for the future.

Despite the deserved regard the APA receives, its procedural provisions have had more mixed success than is commonly acknowledged. By procedural provisions, I mean the parts of the APA that establish minimum procedural requirements for the two principal types of agency action: rulemaking and adjudication. (8) This Essay focuses on these provisions. (9) Over the last several years, I have examined these provisions and the agency practices that inspired them "in gruesome detail." (10) I undertook this project after nearly Fifteen years of studying contemporary law and agency practices in rulemaking and adjudication. In administrative law, it can be easy to miss the forest for the trees. This Essay takes a step back from the trees, i.e., the technical details of the APA and the processes of individual agencies that are my usual subject of study, to reflect more broadly on the successes, failures, and future of the APA.

This Essay argues that the APA has failed in adjudication but succeeded spectacularly in rulemaking. In both contexts, the APA's goal was to establish uniform minimum procedures, which would reform existing agency practices and provide a framework for the future. In adjudication, that goal has not been realized. Most adjudicatory hearings are not conducted under the APA's hearing provisions, uniformity is wholly lacking, and what today remains of the APA's hearing regime in practice appears to be collapsing. (11) In rulemaking, by contrast, the APA's informal, notice-and-comment process has been firmly established as the procedure for the development, modification, and repeal of administrative regulations. Agency-specific rulemaking procedures are exceedingly rare and widely despised, and the APA has supplied a foundation for the development of a robust body of administrative common law. (12) While there are challenges in rulemaking, they are relatively minor compared to the problems in agency adjudication, and they can be addressed through the application of a uniform legal regime.

This Essay's principal aim is to explore why the APA has been more successful in rulemaking than in adjudication. Uncovering these reasons may help to illuminate the conditions necessary for a framework statute to succeed, as well as the circumstances that may limit or prevent its success.

First, Part I of this Essay argues that the APA's success in adjudication was limited because the statute did not, as is typically assumed, settle deep-seated disagreement about the need for or essential content of uniform minimum procedural requirements for adjudicatory hearings. Moreover, opponents of the APA's hearing regime were aided in resisting the law because of underappreciated difficulties associated with the project of reforming pre-existing law and practice. These difficulties included: (1) the inherent messiness of the drafters' use of creative codification to construct the APA; (2) the ambiguity produced by Congress's failure to make conforming amendments to pre-APA statutes that conflicted with the APA's new regime; and (3) the extraordinary force of institutional inertia. The result was a complex legal regime with sufficient uncertainty to afford space for a long-simmering preference for procedural informality to persist and take root within the executive establishment, Congress, and the private bar. Over decades, as I have documented elsewhere, the result has been the emergence of a norm of adjudicatory exceptionalism that is fundamentally at odds with the APA's goal of establishing a uniform procedural regime for adjudicatory hearings. (13)

Next, Part II argues that the APA was more successful in rulemaking because in this context it was prescient, establishing a framework several decades before it was widely needed. Here, the APA codified best practices in an area in which the development of both the law and administrative practices was nascent. When rulemaking became the preferred mode of agency policymaking in the 1960s and '70s, the APA's notice-and-comment requirements were attractively minimalist in comparison to its hearing regime. This helped to entice agencies to shift from adjudication to rulemaking and, over time, the APA's provisions proved successful in providing a statutory substrate necessary for the development of both agency practice and a robust body of administrative common law.

Finally, Part III offers a warning for the future interpretation of the APA. Over the last several years, my deep dive into the statute's research foundation has clarified to me that much--maybe most--of the APA's meaning is supplied by background principles and the institutional context from which the statute emerged. When the statute was first enacted, the core principles grounded in this rich context were well understood within the legal profession. In recent decades, however, that underlying knowledge has been lost and replaced with new background understandings that would have been foreign at the time the APA was enacted. (14) In today's textualist era, this presents a real and increasing danger that a shallow textualist approach to interpreting the APA will continue to warp the statute's meaning.

1. A FAILED EFFORT TO REFORM ADJUDICATORY HEARINGS

   The APA's adjudication provisions codified existing best practices, with the goals of reforming inefficient and detrimental practices and (in the process) securing uniformity in the minimum procedural requirements observed in adjudicatory hearings. The APA's drafters were able to craft a statute that incorporated these two components--codification and reform--only because they were equipped with extensive research into pre-APA law and the actual procedures and practices of a wide selection of administrative agencies. That research was provided predominately by the Attorney General's Committee on Administrative Procedure. (15) Although the APA is a blend of codification and reform, it is worth considering each of these elements independently.

   First, codification. In adjudication before the APA's enactment, there was quite a bit of established law that provided a structure within which agencies had developed fairly well crystallized procedures and practices. Each agency had a pre-APA statute that required it to fulfill a specified mission by taking certain actions, such as inspections, investigations, negotiations, and hearings. (16) Under the auspices of the Due Process Clause, federal courts had elaborated upon the minimum procedural requirements of a "hearing" in an adjudicatory proceeding. (17) Adjudicating agencies had fleshed out the applicable statutory requirements and responded to the judicially developed administrative law with agency-specific procedures and practices. Cumulatively, these statutes, judicial precedents, regulations, and agency practices formed a body of law that supplied a relatively robust procedural framework for agency adjudication. Examining the operation of this body of law across twenty-seven individual agencies and regulatory programs, the Attorney General's Committee was able to discern clear, cross-cutting principles regarding the purpose, timing, and essential procedural elements of adjudicatory hearings. (18) The APA's hearing provisions codified these principles. (19)

   Second, reform. The research underlying the APA also revealed common problems across adjudicating agencies, especially with respect to the conditions necessary for ensuring the impartiality and competence of the officers who presided over adjudicator)' hearings. In many agencies, the functions of investigation and prosecution were undertaken by the same officers who presided over the hearings. (20) The competence and skill of these officers was also highly variable across the agencies, as was the degree to which the agencies allowed hearing officers to independently conduct hearings and make recommended or initial decisions in the cases they heard. The independent regulatory commissions particularly had a tendency to micromanage their hearing officers--by maintaining interlocutory control of the many decisions that must be made to conduct a hearing and prohibiting or discouraging hearing officers from suggesting how the cases they heard ought to be decided. (21) These...