Changing Times: The APA at Fifty

Strauss, Peter

This Essay will explore the durability of the Administrative Procedure Act (APA), in terms of its judicial history. It will focus, in particular, on the Supreme Court's treatment of the APA as embodying statutory resolutions of procedural issues the courts might otherwise have to resolve unguided. Against the backdrop of change briefly sketched above, one could think it astounding that the APA's procedural specifications, universals across government, have survived almost unaltered. This statute, like our four-times-older Constitution, thus raises a general question about interpretation in a particularly powerful form: To what extent has this 1946 statute been read to embody a frozen ("static") set of instructions about procedure, modifiable only by congressional action? And to what extent have courts interpreting it grounded their readings in current necessities, or in intervening developments that seem to have been generally accepted by the concerned communities? For a statute of such duration and generality, as for a constitution, flexible interpretation responsive to changing circumstances may be the very essence. And, as for a constitution, one might also expect such a practice to raise significant issues of legitimacy. The story is also one of lawyers' conventions--of what, reading the traces of their arguments, one can understand to have been the legal community's expectations about how a statute of this character should be understood.


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The University of Chicago Press
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May 24, 2016