The Origins of the Apa: Misremembered and Forgotten Views


In the first weeks of the Trump Administration, a Harvard Law Review article warned that attacks on federal regulatory agencies—and calls for their closer judicial supervision—heralded a revival of the “anti-administrativism” that animated attacks on the New Deal in the 1930s. That article invoked an earlier, more detailed study of debates in the 1930s, which argued that the Administrative Procedure Act (“APA”) was not the product of an evolving consensus but rather a “fierce compromise” between pro- and anti-New Deal forces.

This view has become conventional wisdom. In December of 2019, the Trump Administration's Solicitor General, Noel Francisco, opened a conference on “modernizing the Administrative Procedure Act” with the observation that the Department of Justice was well-equipped to encourage new thinking, since a Department of Justice initiative at the end of the 1930s had helped persuade Congress to abandon the Walter-Logan bill which was “highly restrictive of federal agencies.” Instead, he claimed, the 1941 Final Report of the Attorney General's Committee on Administrative Procedure (“Final Report”) prepared the way for the more accommodating provisions of the postwar APA.

Such accounts are misleading in three ways. First, they exaggerate the distance between the APA, as enacted after the war, and the proposals advocated by critics of regulatory practice in the 1930s. Second, such characterizations wrongly reduce the legal debates of the 1930s to partisan or political disputes about the substance of New Deal regulatory programs. Third, they leave out a range of other issues which the Attorney General's Committee recognized as deserving the attention of reformers. That may well be because positions on these issues do not lend themselves to later interpretations focusing on partisan or political motivations supposed to have been at stake. Correcting the stories that have come down to us is not merely a service to historical accuracy. The actual debates of that era remain relevant to our time in ways that conventional accounts have failed to recognize.

This Article proceeds as follows. Part 1 recounts the origins of the Attorney General's Committee and its Final Report. Each of the next four parts examines a specific topic debated in that era: the rule of law (Part 11), the president's role in the administrative state (Part 111), rulemaking procedure (Part LV), and judicial review (Part V). Finally, Part VI reflects on the ways subsequent developments may help us reach a better understanding of the concerns that animated the drafters of the Administrative Procedure Act.