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Kathryn E. Kovacs, Superstatute Theory and Administrative Common Law, 90 Indiana L. J. (forthcoming 2014), available at SSRN.

Most administrative law aficionados would think of the Administrative Procedure Act as a “superstatute,” but they might not all focus on what that might mean. Kathryn Kovacs has undertaken to tease the meaning of the APA as a superstatute and address the implications of such a characterization. They might not be what you would imagine.

Professor Kovacs begins by asking to what extent is administrative law “common law.” The APA is, of course, a statute, but it is viewed as largely codifying the then-existing common law. Moreover, after its passage courts continued to develop a common law of administrative law both to flesh out the ambiguous provisions of the APA and quite clearly to add on to them. While Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), may have drawn the curtain on new judicial inventions to administrative common law, it did not repeal those that had become well ingrained in the case law. Professor Kovacs focuses on two such inventions that have no basis in the text or history of the APA: deference to the military in matters subject to the APA and the ripeness doctrine.

How does this relate to the APA as a superstatute? One way of viewing a superstatute would be to allow courts broad leeway not only in its interpretation but also to further its purposes, at least as perceived by the judiciary, rather than awaiting legislative amendment. Indeed, Professors Eskridge and Ferejohn in their article, Super-Statutes, argue that superstatutes should be interpreted dynamically and evolutively. If the APA is so interpreted, perhaps the judicial invention and maintenance of deference to the military and the ripeness doctrine would be appropriate. Professor Kovacs, however, thinks otherwise. She notes that while the APA meets some of the criteria for a superstatute as described by Eskridge and Ferejohn, it does not meet them all. Clearly the APA is a statute that, as stated by Eskridge and Ferejohn, “successfully penetrate[d] public normative and institutional culture in a deep way,” and which, because it arose from a extended deliberative process and has survived efforts to change it, has taken on a “normative gravity” unlike normal statutes. Moreover, the APA is stable over time but adaptable to new circumstances. However, at least two features of the APA do not meet Eskridge and Ferejohn’s characteristics for superstatutes. One is the fact that according to their taxonomy superstatutes are adaptable over time because the details are worked out by experts working under the statute, but the APA has adapted over time because of judicial interpretations, not the kind of experts Eskridge and Ferejohn have in mind. Another and probably more important difference is the fact that superstatutes maintain their legitimacy because their development over time is the result of popular deliberation through public input, but again the APA has maintained its legitimacy not through popular deliberation through public input but through faith in the judiciary. Eskridge and Ferejohn’s paradigmatic superstatutes, such as the Securities Act of 1933, the Securities Exchange Act of 1934, the Food, Drug, and Cosmetic Act, the Clean Air Act, and the Clean Water Act, involve expert agencies interacting with regulated entities and regulatory beneficiaries within fairly broad grants of discretion to hone their respective statutes under the watchful eye of the courts. This is not the trajectory of the APA.

So what? According to Kovacs, the Eskridge and Ferejohn theory of superstatutes actually suggests that courts should not interpret the APA broadly. Only by hewing closely to the text and legislative history will judicial review accord with Eskridge and Ferejohn’s demand that judicial review of superstatutes be “deliberation-respecting,” “deliberation-inducing,” and “deliberation-rewarding.” Such review would be “deliberation-respecting” because it would respect the deliberation, compromises, and choices that were made when the APA was enacted. It would be “deliberation-inducing” because it would force Congress to deliberate as to how to deal with new administrative problems and issues. For Eskridge and Ferejohn’s normal superstatute, judicial review would be deliberation inducing by leaving to the agency the choices to be made, in light of the agency’s expertise and interaction with the relevant public in making the choices. And, while with normal superstatutes “deliberation-rewarding” would mean respecting the choices made by agencies pursuant to their expertise and public deliberation, with the APA the agencies do not make the administrative law choices in this way. Hence there is no deliberation-rewarding to be done.

Kovacs sees some evidence that the Supreme Court at least in part follows the path she is suggesting. For example, Vermont Yankee certainly fits her analysis, as do Director, Office of Workers’ Compensation Program v. Greenwich Collieries, 512 U.S. 267 (1994), which rejected an agency’s attempt to shift the burden of proof in black lung and longshoremen workers compensation act proceedings to the employer, and Dickinson v. Zurko, 527 U.S. 150 (1999), which held that Federal Circuit reviews of Patent and Trademark Office were governed by the APA. And earlier, the Supreme Court applied the APA in Wong Yang Sung v. McGrath, 339 U.S. 33, 41 (1950), which resulted in a statutory change, thereby reflecting deliberation-inducing.

In light of these considerations, Professor Kovacs would conclude that current ripeness doctrine applied by courts in administrative law cases should be jettisoned, much as Darby v. Cisneros, 509 U.S. 137 (1993), adhered strictly to the language of the APA and rejected the administrative common law doctrine of exhaustion of administrative remedies. Similarly, she would overturn the common law deference to actions by military agencies otherwise subject to the APA in light of the lack of text or history to support it. And, although she does not address it, she should sign onto the law professors’ amicus brief supporting a grant of certiorari in Perez v. Mortgage Bankers Ass’n (Mortgage Bankers Ass’n v. Harris, 720 F.3d 966 (D.C. Cir. 2013)), and seeking reversal of the D.C. Circuit’s decision requiring agencies to use notice-and-comment rulemaking to change a definitive interpretation contained in an interpretive rule adopted without notice-and-comment. As that amicus brief makes clear, such a requirement is inconsistent with the explicit text of the APA. It is a requirement invented by the D.C. Circuit from whole cloth.

Professor Kovacs does not ignore arguments in favor of judicial common law development of administrative law, addressing in particular Gillian Metzger’s Embracing Administrative Common Law. Ultimately, Kovacs finds that judicial development of administrative law fails to be adequately accountable to the public. The APA is special, she says, because of the extreme public effort and deliberation that went into its enactment. It is deliberation-respecting for courts to resist the urge to make common law changes to it, especially changes that are directly inconsistent with the language and history of the APA.

One need not agree with all that Professor Kovacs suggests in this article to appreciate both its novelty of approach to the APA and its capacity to inspire other connections from her analysis. For example, how should one characterize Chevron, USA, Inc. v. NRDC, 467 U.S. 837 (1984)? Some have suggested it is inconsistent with the APA, which states that courts reviewing agency action should “decide all relevant questions of law [and] interpret . . . statutory provisions.” Is Chevron a judicial common law development of the APA? If so, Professor Kovacs should not approve, but is Chevron not a paradigmatic deliberation-inducing and deliberation-rewarding interpretation of the APA? By deferring to agencies’ reasonable interpretations of their statutes, the courts are rewarding agencies for adopting interpretations through rulemaking or adjudication, which are deliberative activities involving the interested public. Moreover, by not freezing a static meaning onto an ambiguous statutory term, the courts induce agencies to adopt interpretations, which may indeed shift over time, through a deliberative process.

It is the hallmark of a good law review article to inspire new thoughts about and approaches to recurring issues. By that measure, this article is a good one.

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Cite as: William Funk, The APA as “Superstatute” and What Does That Mean?, JOTWELL (May 16, 2014) (reviewing Kathryn E. Kovacs, Superstatute Theory and Administrative Common Law, 90 Indiana L. J. (forthcoming 2014), available at SSRN),