A Day in the Life of an Administrative Law Nerd, by Kathryn E. Kovacs

by Guest Blogger — Monday, Oct. 29, 2018

When my conference was canceled, I rejoiced. A free day in Washington, D.C.! The last time I was in Washington, an unprecedented windstorm foiled my plans. This time, hurricane Florence was bearing down on the Carolinas, but it turned away from Washington. It was meant to be: a day at the National Archives and the Library of Congress.

I am working on a piece examining whether the President should be considered an “agency” under the Administrative Procedure Act of 1946.[1] In a nutshell, if the President acts like an agency, I think he should be treated like one.[2] I wanted to know if Congress considered this question when it debated administrative reform in the 1930s and ‘40s. My fabulous librarian has been hard at work on the legislative history, but the legislative files at the National Archives contain reams of material that are never published. I also wanted to see if the Justices of the Supreme Court discussed this question before the Court held in Franklin v. Massachusetts that the President is not an “agency” under the APA.[3]

I picked a bright spot underneath the windows in the National Archives reading room. The legislative archivist wheeled over a cart with five archival boxes on it, and I dug in. First, I poured over the congressional records of the Walter Logan bill. Congress passed this bill in 1940, on the eve of the United States’ entry into World War II, because a majority in Congress felt that it was time to reign in federal administrative agencies. President Roosevelt vetoed the bill for various reasons, chief among them that he wanted to await the report of the committee he had asked the Attorney General to form the prior year to study administrative reform.[4] I flipped a page, and there it was: Franklin Delano Roosevelt’s veto of the Walter Logan bill, his original signature in my hands. I waltzed around the reading room showing it to anyone who would look. Thankfully, they did not throw me out.

When I recovered my composure, I moved on to the records that have survived from the House and Senate on the bill that became the APA. The American Bar Association’s Administrative Law Section drafted the bill as a compromise between the liberal majority and the conservative minority of the Attorney General’s Committee on Administrative Procedure. It was introduced in Congress two weeks after D-Day.[5] I leafed through multiple drafts of the bill, numerous amendments scribbled on paper, line-by-line edits, page after page of feedback from the American Bar Association, piles and piles of comments from dozens of federal agencies, and notes from meetings. Along with all of that, which was impressive but not unexpected, I found evidence of tremendous public support for the bill: resolutions from state and local bar associations all over the country; state legislative declarations; and letters, postcards, and telegrams from chambers of commerce, law firms, companies, trade associations, lawyers, businessmen, engineers, consultants, and laypersons. The volume of material was overwhelming.

Sitting in the National Archives building, itself a product of the New Deal, it struck me how remarkable it is that just after World War II ended, the House and Senate Judiciary Committees put so much effort into constructing a bill on administrative procedure, a bill that ultimately passed unanimously and earned President Truman’s signature.[6] Looking through the bill files, it is clear that Congress deliberated deeply in conjunction with the ABA, federal agencies, non-governmental entities, and individuals around the country over the course of years. Congress spent significant time and energy contemplating the overall structure of the bill, the proper balance between agency discretion and control, and the exact wording of this bill.[7]

After tearing myself away from the Archives, I walked past the Capital to the Library of Congress, which houses the papers of many of the Justices of the Supreme Court. Justice Blackmun’s file for Franklin v. Massachusetts included a full set of the Court’s circulated memoranda and opinion drafts, as well as his handwritten conference notes. In contrast to the APA bill file, the Supreme Court’s memoranda in Franklin v. Massachusetts were devoid of any deliberation on the question of whether the president is an “agency” under the APA. From what I can decipher of Justice Blackmun’s tiny, pseudo-shorthand script, the issue was not discussed at the conference either. Justice O’Connor stated in her first draft of the majority opinion that the President is not an “agency.” No justice debated the point with her or even raised an eyebrow.

The lack of discussion is truly remarkable given that the plain language of the APA seems to include the president in the definition of “agency”; it exempts Congress, the courts, and other entities, but not the President.[8] The failure to exempt the President stands in contrast to the APA’s precursor, the Walter Logan bill, which expressly exempted the President from its provisions.[9] The majority in Franklin v. Massachusetts expressed concern about “separation of powers and the unique constitutional position of the President,”[10] but it did not bother to examine the many exceptions in the APA that might insulate presidential decisions from judicial review. This consequential issue was not briefed or raised at argument in Franklin v. Massachusetts, and no member of the Court questioned Justice O’Connor’s conclusion.

I ended the day exhilarated, but frustrated. How can the courts ignore the language of this remarkable statute? How can they think that they are better equipped than Congress to balance the benefits and burdens of rules of administrative procedure? On those too-rare occasions when Congress actually does its job carefully, thoughtfully, and deliberately, should not courts pay close attention to the result of that effort? Sometimes Congress is the more deliberative branch. Perhaps the courts could show more respect for that deliberation.[11]

 


Kathryn E. Kovacs is a Professor of Law at Rutgers Law School. Follow her on Twitter here.

 

[1] Pub. L. No. 79-404, 60 Stat. 237 (1946).

[2] Kathryn E. Kovacs, Trump v. Hawaii: A Run of the Mill Administrative Law Case, 36 Yale J. On Reg.: Notice & Comment (May 3, 2018).

[3] 505 U.S. 788, 800-01 (1992).

[4] See Kathryn E. Kovacs, A History of the Military Authority Exception in the Administrative Procedure Act, 62 Admin. L.Rev. 673, 683-90 (2010).

[5] Id. at 696.

[6] Id. at 703-04.

[7] See Kathryn E. Kovacs, Superstatute Theory and Administrative Common Law, 90 Indiana L.J. 1207, 1224-27 (2015).

[8] 5 U.S.C. § 551(1).

[9] H.R. 6324, 76th Cong. § 1(2) (3d Sess. 1940).

[10] 505 U.S. at 800.

[11] See William N. Eskridge,Jr. & John Ferejohn, A Republic Of Statutes: The New American Constitution 266, 296, 435–36 (2010).

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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4 thoughts on “A Day in the Life of an Administrative Law Nerd, by Kathryn E. Kovacs

  1. William M Yeatman

    Really, really cool stuff! I’ve given some thought to the fact that President isn’t an agency, in the context of monument designations under the Antiquities Act. Through the FLMPA, Congress set forth a convoluted process of participation before the BLM makes any change to management of public lands; yet the president can regulate hundreds of thousands of acres with the stroke of a pen (which often occur during last weeks in office, when there is no political accountability whatsoever). It’s pretty darn strange that the president’s reasoning escapes even reasonableness review, and there’s zero requirement for any evidentiary record of any sort. FWIW, a pre-APA district court allowed for discovery on an Antiquities Act claim, which I think better reflects congressional intent (apart from leg history of the APA, which is an even better piece of evidence).

    There is one possible, but improbable, way to distinguish Franklin. The Court’s opinion characterized the underlying action as a duty, and the president’s role in that regime seemingly was non-discretionary. It’s perhaps possible to interpret the Franklin court as saying that the president is not an agency only when the action is non-discretionary–i.e., that the president could not be subject to an agency-forcing cause of action. Discretionary actions, on the other hand, would be considered “agency” action and would therefore require a record and reasonable decision-making. I don’t see any imperative for this reasoning, but I bet it’s possible to cook one up, and it would at least allow for hard look review of presidential (administrative) policymaking without overturning Franklin. But, again, it’s a tenuous argument, so you’d have to hold your nose.

    In any case, I really look forward to your paper!

    Reply
    1. william yeatman

      comment above about discretionary vs nondiscretionary is of course wrong, and you are polite for not denigrating me. Of course, whole lynchpin of their reasoning is that its a discretionary act. a temporary lapse of reason; mea culpa.

      Reply
  2. William M Yeatman

    Over lunch, it just dawned on me that APA 701a2 allows for political questions, which should accommodate court’s concerns set forth in Franklin. Then I sped to this post to see whether you’d already thought of that, and you had:

    “but it did not bother to examine the many exceptions in the APA that might insulate presidential decisions from judicial review. This consequential issue was not briefed or raised at argument in Franklin v. Massachusetts, and no member of the Court questioned Justice O’Connor’s conclusion.”

    VERY COOL! Again, i look forward to this paper.

    Reply

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