THE APA AS A SUPER-STATUTE: DEEP COMPROMISE AND JUDICIAL REVIEW OF NOTICE-AND-COMMENT RULEMAKING.

• Author: Eskridge, William N., Jr.

INTRODUCTION 1894 I. THE APA AS A DEEP COMPROMISE ELABORATED AND ENTRENCHED BY ONGOING PUBLIC DELIBERATION 1907 A. Fierce Compromise? Modus Vivendi? 1907 B. The APA as a Deep Compromise 1910 C. The Terms of the APA's Deep Compromise 1921 II. THE IMPLEMENTATION OF THE APA'S DEEP COMPROMISE: INSTITUTIONAL INTERACTION AND FOLK DEMOCRACY 1923 A. The APA as a Super-Statute: Implementation 1923 B. APA Originalism and Shallow Compromise: Rulemaking Process and the Presumption of Judicial Review 1927 C. APA Originalism and Deep Compromise: Hard Look Review and Judicial Deference 1933 III. THE APA'S DEEP COMPROMISE, THE NONDELEGATION DOCTRINE, AND THE MAJOR QUESTIONS DOCTRINE 1946 A. The Roberts Court's Creation of a Super-Strong Nondelegation Canon Versus APA Originalism 1946 B. The APA's Deep Compromise and the Delegation Doctrine 1953 C. The APA's Deep Compromise and the Major Questions Doctrine 1957 CONCLUSION 1960 INTRODUCTION

There is academic consensus that the Administrative Procedure Act of 1946 (APA) is a super-statute, "entrenching governmental structures and quasi-constitutional norms." (1) Like other landmark statutes, the APA is a part of the foundation of the modern American state. (2) The development of the modern state was resisted at every step and occupied much of the twentieth century. (3) The result was the formation of a distinctively American social democracy which combined aspects of a welfare state with regulated capitalism in a diverse and increasingly inclusive political community. Many super-statutes emerged as a result of popular pressure arising from social movements which were sometimes reflected in powerful electoral tides that altered the makeup of federal and state institutions in lasting ways. (4) New substantive laws and their accompanying agencies were often hard-fought compromises between public and private values, which had to be accepted by subsequent legislatures, administrators, and courts if they were to stick. (5) These deep, lasting compromises required advocates on all sides to reconsider and sometimes modify deeply held values and beliefs.

Importantly, the compromises that lasted were usually those that preserved and extended democratic values into the new institutional creations and practices, while preserving legal protections for property and liberty interests. (6) The origin and evolution of the APA seem different from these. Everyone agrees that it was a compromise between or among powerful interests, but it is hard to see the APA as pushed by a social movement, and it has not been seriously revisited by Congress. (7) Still the 1946 Act can be described as a super-statute in two senses: first, it was a deep compromise that marked the partial acceptance of a social democratic welfare state in a capitalist economy; second, it was a "framework" statute that affirmed and extended democratic values and practices into new and old agencies and, in effect, enlisted courts in support of these values.

It was perhaps easy for American public officials and citizens to recognize and endorse democratic values if those were framed at a high level of abstraction. After all, in the United States, the necessity for popular legitimation was accepted even by the democracy-skeptical Framers. They accepted that elections would have to be held frequently so that officials of the new federal government could be made to account for their actions before the people. (8) But building democratic practices into the new federal government was a much trickier matter and the Framers themselves resisted such efforts in many ways. (9) Still, the subsequent history of our country shows the enduring power of the democratic idea--that the people ought to have, must have, an important role in government even if that role may not be direct. Indeed, democratic pressures are often exerted in making the people's role more explicit and regular (as with the invention of direct primary, the referendum and popular initiative, and other direct democracy ideas).

The genius of the APA is that it managed to advance the democracy and governance projects to a substantial degree while, at the same time, respecting the rule of law. In effect, the APA offered administrative agencies a legitimate way to make rules with the force of law by combining democratic values with due process values (which could be policed by courts). Agency decisions were to be substantively reasonable, publicly justified, and responsive to public comments. The APA accomplished this by devising procedures that reflected both democratic and due process values--procedures that were appropriate to agencies rather than courts or legislatures. These procedures were not wholly original--pre-APA administrative practices already reflected similar values, to varying extents. (10) But the APA was revolutionary in establishing a substantially uniform and much more inclusive template that Americans could expect to be honored throughout the federal government. (11)

We argue that this reconciliation of democratic and due process values was accomplished, in part, by modeling the APA as a version of what we might call "folk" democratic theory--a theory of democracy that embodies popular understandings of how a democratic government should work. This "theory" was probably as widely shared among opponents as proponents of the administrative state. (12) The key idea in folk democratic theory is that government power is best exercised directly (by the people) insofar as that is possible. (13) From the perspective of folk democracy, the right to vote is the fundamental democratic right. (14) The assumption is that We the People--indeed, each person--is competent to make choices among candidates in elections (or to choose among policies where popular referenda are available). The idea is reflected in what is sometimes called the sanctity of the voting booth (with secret ballots and regulations limiting campaigning in the near vicinity), and in the ideological centrality of the jury trial. In effeet, folk democracy assumes that we will get equal concern for our interests if only we can fully implement the requirement of equal respect for our votes. (15) Folk democracy also insists that where authority must be exercised by elected representatives, these officials must remain politically "close" to the people by exposing themselves and their actions in office to frequent and fairly conducted elections. (16) Elected representatives are expected to act on behalf of their constituents and to explain and justify their plans and actions to their constituents when running for reelection. If the representative wants to be returned to office, he or she must provide a persuasive account of his or her actions to constituents. The reasons offered by an elected representative are primarily directed to her voters (in support of her claim to act on their behalf and in their interests) as part of her appeal to take actions on their behalf. (17) Importantly, for the most part, these justifications were not to be policed by courts but would be regulated politically by voters in constituencies.

Elected representatives cannot do everything in a complex modern state, however. If it is to address the needs of a modern society, Congress must often delegate the authority to make binding rules to specialized administrative agencies. Congress's power to do that is a great part of what makes it valuable to the people. When agencies must make legally binding rules, in this sense, they should, as far as possible, do so in the same ways that Congress would. Folk democracy requires that, like elected representatives, agencies must give reasons for their actions--but, unlike elected representatives, the occasion for agency justifications is not an election (at least not directly). Rather, explanations might be demanded in a congressional hearing or in a judicial proceeding questioning an agency rule or decision. The agency's reasons might be, in this sense, directed either to the legislature (which delegated authority to the agency and provides its funding), or the courts. Ultimately, however, these justifications are owed to the electorate. In this sense agency activity is accountable through democracy (elections) and to law (through judicial review of agency actions).

Agencies must sometimes act like courts in providing some kind of due process to individuals or organizations that may be affected by a decision. This is especially the case where the agency is engaged in adjudication. But agencies are rarely required to provide the same kind or amount of due process when making rules. (18) Indeed, the most important innovation in the APA was the creation or extension of notice-and-comment rulemaking across nearly all of the "administrative state." (19) This avoided cumbersome judicial procedures when legislating new rules but required agencies to act transparently: to receive and consider public comments, with judicial review hovering as an incentive to take comments seriously. (20) Agency decisionmakers are much less insulated than federal judges. Judges are expected to give reasons or justifications for their decisions, but these reasons are supposed to be based in law and not on policy considerations. As with courts, agency justifications are supposed to be closely tied to the proceedings leading to the decision. (21)

Folk democracy, so far as we have sketched it, rests on the supposition that ultimate political authority rests with We the People and that governance must therefore be accountable to the people directly or indirectly. If political power is to be exercised other than directly, it must be legally delegated by "We the People" in some sense. And delegated powers must be accompanied by reasons or justifications. Folk democracy makes no claim about how much delegation can be justified; such limits must be found in the Constitution or in political morality. Folk democracy says...