August 15, 2015

Professor Gellhorn, The APA, and OIRA

“McNollgast” describes the prevailing conclusion regarding the Administrative Procedure Act (APA), the mechanism used for implementing federal policy:

“According to most legal scholarship, the purpose of the APA was to codify and rationalize existing practice of procedural due process that had percolated in a haphazard manner through the courts in the 1930s. According to this account, the passage of the act was uncontroversial.

Gellhorn (1986: 232), for instance, states: “The measure was approved on May 24, 1946, without a recorded vote and with no indication of dissent. Thus, in an atmosphere of happy accord, ended what had begun as an exercise of the imagination.” Gellhorn and Davis (1986: 521) assert, “The real reason the Administrative Procedure Act did not cause a great turmoil when it was enacted was that to a considerable extent it is declaratory.”(1)

On the other hand the McNollgast school makes arguments contrary to the prevailing ideology of Administrative Law; namely that the primary intent of the APA was to provide unified procedures for the conduct of the administrative state. Instead McNollgast argues that the intent of the APA procedures were to lawyer up the process so that it would be difficult to undo the programs of the New Deal.

The aforementioned differences are understandable; McNollgast traces its roots to political science but the prevailing view is one advocated by the legal profession.

More pointedly “McNollgast” concludes:

We conclude that the dominant factor explaining these patterns is support for New Deal regulatory policy, and that the primary explanation for the failure of administrative reform proposals before World War II but their success later was the desire of New Deal Democrats to “hard wire” the policies of the New Deal against an expected Republican, anti-New Deal political tide in the late 1940s.

Professor Martin Shapiro of Berkeley Law School states:

In the 1930s many advocates of limited government changed their minds about administrative law under the onslaught of the New Deal legislation. Administrative law appeared highly desirable as a restraint on an executive branch armed with broad public support and an obedient body of bureaucrats. While President Franklin D. Roosevelt certainly did not support such a move, he countered the call and adopted it as his own. A special presidential commission was appointed under the direction of loyal New Deal lawyer Walter Gellhorn. In typical New Deal pragmatic style, the committee went about documenting the actual practices of the Washington agencies, codifying the practices into the first draft of the Administrative Procedures Act.

Is the evolution of OIRA (Office of Information and Regulatory Affairs in the White Office of Management and Budget) a revisiting of the events of 1946 which lead to the passage of the APA?

To date the discourse on the APA has occurred mainly in the legal profession. Consequently in the development of the OIRA Teaching Module there is a need for non-legal disciplines to address the divergence in views on the moving force behind the passage of the APA. In particular scholars should address if there is merit to the contrarian view and if so what are its implications for an expanded OIRA presence in the rulemaking process so as to correct for the biases inherent in the APA?

Background information on this page.

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 (1) The Political Origins of the Administrative Procedure Act (McNollgast)

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