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© 2023 Christopher J. Walker & Scott T. MacGuidwin. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

Abstract

The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.

As part of the Notre Dame Law Review’s Symposium on the History of the Ad- ministrative Procedure Act and Judicial Review, this Essay provides a literature review of the competing methodologies for interpreting the APA: textualism, originalism, purposivism (or pragmatism), and a more dynamic or living approach that encourages administrative common law. This Essay concludes by embracing a middle-ground approach: The Supreme Court (and lower courts) should answer open statutory questions based on the text, structure, context, and original understanding of the APA. But when it comes to interpretive questions courts have already answered, the pull of statutory stare decisis should be quite strong, and reform to those precedents should be left largely to Congress. This approach best advances administrative law’s rule-of-law values such as predictability, reliance, stability, and the separation of powers.

Disciplines

Administrative Law | Law | Law and Economics | Legislation

Date of this Version

7-7-2023

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