Ronald M. Levin (Washington University in St. Louis – School of Law) has posted The Evolving APA and the Originalist Challenge (Chicago-Kent Law Review, Vol. 97, No. 1, 2021) (37 pages) on SSRN. Here is the abstract:
This article, written for a symposium marking the seventy-fifth anniversary of the Administrative Procedure Act (APA), discusses the manifold ways in which courts have creatively interpreted the APA’s provisions on rulemaking, adjudication, and judicial review. Many of these interpretations seem to be barely, if at all, consistent with the intentions of the Act’s drafters and with standard principles of statutory construction. They can, however, be defended as pragmatic judicial efforts to keep up with the evolving needs of the regulatory state, especially in light of Congress’s persistent failure to take charge of updating the Act on its own. At this point, a large-scale effort to undo these judicial innovations would be disruptive.
Nevertheless, recent court decisions and public law scholarship have displayed increasing interest in originalist and formalist methods of statutory interpretation, and this development potentially threatens the continued survival of many of the courts’ glosses on the APA. In order to evaluate where such reasoning could lead, this article critically examines the work of three authors who have advocated what may be described as “APA originalism.” The article highlights difficulties with these authors’ positions and concludes that a program of APA originalism is unlikely to attract broad support.
Via Larry Solum at Legal Theory Blog, who says "Recommended" and adds some comments that begin: "I do have a quibble with the formulation of what the author calls "APA Originalism" in the following paragraph …"
RELATED: From several years ago, Evan Bernick: Envisioning Administrative Procedure Act Originalism.
Posted at 6:08 AM