The Administrative Procedure Act I
Bill Long 10/25/05
Understanding a Significant 1946 Statute
There is perhaps no statute which more fully captures the reality of the United States as an administrative state than the APA of 1946. Though passed unanimously by the Congress, the APA reflects several significant compromises between proponents of Executive and Congressional/Judicial power. A study of the history leading to its enactment illustrates important perennial issues such as the balance of powers among branches of the Federal Government as well as the peculiar issues of the late 1930s and early 1940s concerning Roosevelt's relationship with the Congress and the national fears of fascism and communism beyond our borders. An important 125-page law review article on the 50th anniversary of the APA by Professor Gregory Shepherd (90 Nw U L R 1557), describes the prehistory of the APA. The purpose of this and the next few essays is to present some of the issues there discussed in a more focused form, with special emphasis on the theories underlying various approaches to administrative reform in the days leading to the enactment of the APA.
The Issue in a Nutshell
It was not at all obvious how the nation would deal with the dizzying proliferation of federal agencies and bureaucracies in the wake of the New Deal. The number of new agencies established between 1933 - 1945 was about 1/3 of the total number of federal agencies established since the beginning of the republic. What made some of them so controversial, however, was that they impinged directly on the way that America "did business," and often were seen as getting in the way of the expansion or recovery of American business. Examples of these were the National Labor Relations Board and the Securities and Exchange Commission. Thus, the role of administrative agencies, both with respect to rule-making authority and adjudicative power, came front and center to the nation's consciousness.
From about 1933 until 1946 dozens of proposals for administrative law reform were bandied about, but behind these proposals lay two widely different theories of government. On the one hand, supporters of the New Deal wanted to maintain strong executive control over rulemaking and adjudication in these agencies. Fueled by the philosophy originating in the Progressive Era of thirty years before, that "experts" were needed to give policy direction to the Government in a number of areas, the New Dealers wanted to limit the access of the general public to the work of the agencies. Thus, in the two central acts of agency work--rulemaking and adjudication--the New Dealers would permit limited Congressional, Judicial or public oversight of agency work.
On the other hand were the Congressional opponents of Roosevelt and those who felt that a "strong executive" would hinder their ability to make a living. One of the strongest opponents of the "strong executive" proposals of the New Deal was the ABA. Controlled by corporate lawyers at the time, the ABA went on record many times in the 1930s and 1940s as supporting mechanisms such as an "administrative court" or "notice and comment." These mechanisms not only reflected a different philosophy of government (that the adjudicatory functions of agencies ought to be considered in a recognized "judicial" proceeding) but also a desire to keep lawyers employed. Keeping all functions in the executive would possibly limit abilities of lawyers to "put on a case" for their client.
The "Periods" of the Prehistory of the APA
Overlaying these competing approaches to the role of administrative agencies were the ebb and flow of Roosevelt's political fortunes. The tendency is to think of him as an immensely popular President for the entire period from 1933-45, but this is mistaken. Especially after the election of 1936, where he took 46/48 states, Roosevelt made some miscues that allowed his opponents to rally the troops and pass legislation (which he vetoed) which would have given considerable Congressional and Judicial oversight of administrative agencies. Perhaps there is something about a dramatically large victory or victory in the offing that contributes to Presidential miscalculation--for Richard Nixon ended up being most vulnerable for actions carried out in 1972, when he was in a seemingly impregnable political position.
In any case, we can divide the periods of APA prehistory into (1) 1933-37--Roosevelt's First term; (2) 1937-1940, from his attempt to pack the Supreme Court to the passage of the Walter-Logan bill; and (3) 1940-46, from the re-gathering of administration strength to the passage of the APA under Truman in 1946.
Let's begin, then, by setting the context for the issue.
Copyright © 2004-2008 William R. Long