GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2023

Status

Working

Abstract

The Administrative Procedure Act is a broadly worded statute that has benefitted from caselaw to fill many of its gaps, ambiguities, and inconsistencies. But the case method directs judicial attention to slivers of APA inquiry that are required to resolve cases in as-applied challenges to rules and adjudications. There is another method of APA interpretation that has never been deployed in the statute’s 77-year life—that of intentional collaboration between the executive branch and the judiciary. Acting on their litigation and case management authorities as well as their unique power to persuade the judiciary on questions of administrative procedure, the Attorney General can utilize APA rulemaking procedures to promulgate interpretations of key discrete provisions of the APA. The Attorney General does not need to do this through notice-and-comment rulemaking because the APA is not organic to the U.S. Department of Justice. Nonlegislative rulemaking will suffice. Such guidance would facilitate judicial review of pure interpretive distillations of the statute. Through the iterative application of the simple remand rule, the goals of the APA would be advanced through interbranch dialogue with the judiciary either upholding Attorney General interpretations of law or remanding them to DOJ for revision or abandonment. Certain provisions in the APA’s Judicial Review chapter are most amenable to this process because they pertain to executive branch litigation conduct that is in the near-exclusive statutory domain of DOJ. Offering interpretations of key APA provisions through guidance would benefit society by increasing certainty by agency operators, promote judicially consistent standards, accelerate the settled understanding of the statute, and increase the political accountability of the executive branch.

GW Paper Series

2023-14

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