"APA: Past, Present, Future" by Martin Shapiro (1986)
| Administrative State |
|---|
|
| Five Pillars of the Administrative State |
| • Judicial deference • Nondelegation • Executive control • Procedural rights • Agency dynamics |
| Click here for more coverage of the administrative state on Ballotpedia |
"APA: Past, Present, Future" (1986) is an article by American legal scholar Martin Shapiro in which Shapiro examines the development of the Administrative Procedure Act (APA), its evolution, and future proposals to amend the legislation. Shapiro claims that the APA has been altered over time through judicial decisions, piecemeal legislation, and executive actions rather than formal amendments. He argues that intermittent modifications to administrative procedure coupled with political partisanship decrease the likelihood of successful future amendments to the APA.[1]
"We are gathered here in the pages of
the Virginia Law Review neither to bury nor to praise the APA but
to take account of it in our search for what each of us would like
American administration and its law to be. What emerges from
this taking of account by a number of leading scholars and practitioners
is a clearer picture than I would have anticipated of two
contending visions. One is a vision of an administrative law that
facilitates correct, public interest-oriented administrative decisions.
The other is a vision of an administrative law that at any
given moment approximates the play of political forces among the
interests and institutions of the American policymaking process
and itself serves as both a prize and a tool in the pursuit of various
and competing visions of the good. It is to the place of the APA in
these two visions that this article is addressed."
Author
Martin Shapiro is an American legal scholar. As of September 2018, he worked as a law professor at the University of California, Berkeley, School of Law. Shapiro joined the UC Berkeley faculty in 1977. He is the author of Law and Politics in the Supreme Court; Freedom of Speech: The Supreme Court and Judicial Review; Supreme Court and Administrative Agencies; Courts: A Comparative and Political Analysis; and Who Guards the Guardians: Judicial Control of Administration, among other scholarly publications.[2]
Below is a summary of Shapiro's education and career:[2]
- Academic degrees:
- B.A. (1955), University of California, Los Angeles
- Ph.D. (1961), Harvard University
- Law professor and legal scholar
- Recipient of the Lifetime Achievement Award from the Law and Courts section of the American Political Science Association (2003)[2]
Origins of the APA: New Deal ideology and a parliamentary model of government
Shapiro opens the paper by describing the influence of New Deal-era legal scholars on the APA. He examines statements from legal scholar and APA contributor Walter Gellhorn describing the authors' thought process behind the development of the APA. Shapiro argues that Gellhorn and his contemporaries shaped the APA as a means of codifying existing agency practices rather than developing new or innovative administrative processes. In this way, Shapiro claims, the authors of the APA legitimized the administrative state created by the New Deal. Moreover, Shapiro contends that the APA contributors modeled the post-New Deal administrative state on a parliamentary system of government, characterized by a strong executive. Broad delegations of legislative authority to the executive branch both strengthened and insulated the presidency, according to Shapiro:[1]
|
Shapiro observes that, unlike the executive in a parliamentary system, the new strong executive that emerged in the post-New Deal era was not answerable to the legislative branch. Furthermore, he claims that the parliamentary model of weak judicial review encouraged the courts to defer to the expertise of agency administrators.[1]
Evolution of the APA
- See also: Adjudication, rulemaking, and hybrid rulemaking
Shapiro continues his examination of the APA by tracing its evolution from the New Deal through the 1980s. He identifies three divisions of administrative law under the APA: adjudication, rulemaking, and agency discretion. He argues that the majority of the APA's evolution has occurred in the rulemaking division "because the new health, welfare, safety, and environmental statutes of the sixties and seventies demanded more rulemaking and often established detailed substantive and procedural standards for rulemaking."[1]
Shapiro claims that supporters of the APA, such as Alan Morrison and Cass Sunstein, perceive these increased procedural rulemaking standards to be natural, subtle shifts in administrative procedure rather than dramatic alterations. Similarly, Shapiro contends that Morrison and likeminded scholars view the increased judicial activism of the 1960s and 1970s and the development of hybrid rulemaking procedures as beneficial allowances provided for under the APA rather than subsequent actions aimed at addressing its shortcomings. Shapiro further argues that increased judicial activism and a shift toward quasi-judicial rather than quasi-legislative rulemaking procedures have resulted in what APA supporters view as an agency-court partnership that works to shield agencies from both presidential and congressional control:[1]
|
Shapiro states that the fundamental changes to the APA have not occurred through an amendment process but rather through piecemeal legislation and judicial decisions that have impacted administrative procedure.[1]
Proposals for the future of the APA
In the final section of the paper, Shapiro presents his proposals to amend the APA. He observes that the chief obstacle to amending the APA is that the majority of provisions that scholars and advocates seek to change are not contained in the APA. Instead, these provisions are the result of judicial decisions, subsequent legislation, and executive actions:[1]
|
Shapiro continues by identifying six areas of administrative procedure that could be improved by amending the APA: procedural guarantees in adjudication, rulemaking procedures, standards of judicial review, regulatory analysis and agency cooperation, judicial authority to compel rulemaking, and agency discretion. However, Shapiro laments that political partisanship and a lack of consensus among policymakers cast doubt on the likelihood of any successful amendments to the APA.[1]
See also
Full text
Footnotes
- ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 Virginia Law Review, "APA: Past, Present, Future," 1986
- ↑ 2.0 2.1 2.2 Berkeley Law, "Martin Shapiro," accessed September 22, 2018
- ↑ 3.0 3.1 3.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
