The Lost English Roots of Notice-and-Comment Rulemaking
abstract. Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the 1946 Administrative Procedure Act’s “most important idea.” But its historical origins are obscure. Scholars have variously suggested that it grew out of the constitutionally sanctioned practice of congressional petitioning, organically developed from the practices of nineteenth-century agencies, or was influenced by German conceptions of administrative rulemaking.
These histories, however, are incomplete. Using original archival research, this Article demonstrates that notice-and-comment rulemaking was the product of a series of American transplantations of English rulemaking procedures that developed in the late nineteenth and early twentieth centuries. In the New Deal Era, influential American reformers tracked important developments in English rulemaking as they grappled with the rapidly changing American legal ecosystem. Yet, as this Article emphasizes, Americans only partially adopted the English procedural framework. While they transplanted the “notice” and “comment” dimensions of English procedure, the Americans ultimately decided not to import a legislative veto, which was a critical part of rulemaking procedures in England.
By offering a revisionist account of the origins of notice-and-comment rulemaking, this Article makes two contributions. First, it takes an initial step toward recovering a largely forgotten world of Anglo-American administrative law. Second, it illuminates current debates about the legitimacy of notice-and-comment rulemaking. With many current critiques of notice-and-comment rulemaking centering on the procedure’s supposed lack of democratic accountability, the history this Article traces pushes us to ask whether belatedly transplanting an English-style legislative veto would legitimate the procedure.
author. Raoul Berger-Mark DeWolfe Howe Fellow in Legal History, Harvard Law School; Ph.D. Candidate, Harvard University, Department of History. For comments and conversation, thanks to José Argueta Funes, Maureen Brady, Emily S. Bremer, Guy-Uriel Charles, Ryan D. Doerfler, Blake Emerson, Daniel S. Farbman, Noah Feldman, Elizabeth Fisher, Jacob Gersen, Tom Ginsburg, Jon Gould, Joanna Grisinger, Christopher S. Havasy, Michael J. Klarman, Peter Lindseth, Edgar Melgar, Samuel Moyn, Gerald L. Neuman, Nicholas R. Parrillo, Kate Redburn, Daphna Renan, Noah A. Rosenblum, Jordan Rudinsky, Michaeljit Sandhu, Reuel Schiller, Matthew C. Stephenson, Josef Stern, Oren Tamir, Karen Tani, Mark Tushnet, Christopher J. Walker, and the participants at the Administrative Law New Scholarship Roundtable. Special thanks to Daniel R. Ernst for generously reading several drafts of this Article and for sharing some of his immense knowledge about the archives and legal history of the New Deal with me. Finally, thank you to Rosemary Coskrey, Lily Moore-Eissenberg, Zach Spitz, and the rest of the team at the Yale Law Journal for exceptional editorial support.
Introduction
Notice-and-comment rulemaking has seen better days. Enshrined in Section 553 of the 1946 Administrative Procedure Act (APA),1 notice-and-comment rulemaking (also known as informal rulemaking) has gradually evolved into a cornerstone of modern American governance.2 Yet over the past decade, like much of the current administrative state, it has come “under siege.”3
On the right, the procedure has been viewed with increasingly deep suspicion. This mistrust has stemmed from a growing concern that Congress’s delegation of power to administrative bodies violates an original and formal tripartite separation-of-powers principle that “basic policy decisions governing society are to be made by the Legislature.”4 With a receptive audience among many of the current Supreme Court Justices (who are also deeply skeptical of regulation and the modern administrative state), this unease has cast a long shadow on the constitutionality of many regulations, including those promulgated through notice-and-comment procedures.5 Occupied with these constitutional concerns, the Court has come to assign the actual procedures of informal rulemaking little intrinsic value. As it signaled in its 2020 decision in Little Sisters of the Poor—its most recent pronouncement on the value of notice-and-comment rulemaking—so long as an agency “checks the box[]”6 and gives the public a nominal opportunity to participate, courts should not ask whether this participation meaningfully informed the final regulation.7 Whereas courts previously insisted that the procedure’s participatory character was essential to legitimating regulations,8 now the Court has indicated that it does not always care about ensuring that public participation plays a meaningful role in rulemaking.9
If the right has foregrounded informal rulemaking’s suspect constitutional status, the left has homed in on the “democracy deficit” of the procedure when put into action.10 Not too long ago, the procedure was celebrated as participatory,11 representative,12 deliberative,13 transparent,14 and relatively egalitarian.15 Now it has regularly been found wanting on all of these counts.16
Whether the days of notice-and-comment rulemaking—as we know it—are numbered is anyone’s guess. But in the face of this confluence of constitutional and democratic critiques, it is safe to say that informal rulemaking no longer enjoys the support that it once had. Administrative-law scholar Kenneth Culp Davis once famously termed it “one of the greatest innovations of modern government.”17 Now it suffers from “the extended sense of crisis” that has long plagued other dimensions of the administrative state.18
This crisis has led scholars studying these other facets of administrative law on a search for origins, to understand the initial aims and purposes of the multiple components of our modern administrative state.19 The gamble is that by recovering these procedures’ original visions, we can assuage anxieties about the purported illegitimacy of the administrative state today and find a way to guide administrative practice back toward legitimacy. One result of this work is that we are living through a renaissance of scholarship on the history of American administrative law. Yet oddly, despite this revived interest, we still do not fully understand how and why notice-and-comment rulemaking, once termed the APA’s “most important idea,” came into being.20 This is not to say that accounts of notice-and-comment rulemaking’s history do not exist in the literature. They do, but they are incomplete. This is true of accounts plumbing the procedure’s deep genealogy and those exploring its proximate inspirations.
We know that, despite its novelty, the procedure did not emerge out of thin air when it became part of the APA in 1946. But when and where it originated are matters of disagreement. Professor Maggie Blackhawk has suggested that its roots lie in the constitutionally sanctioned practice of petitioning that predates 1789.21 Professor Jerry L. Mashaw has singled out one mid-nineteenth-century agency that developed and deployed a procedure that partially resembles notice-and-comment rulemaking.22 Professor Blake Emerson has offered a third data point, directing attention to procedures used during the Progressive Era.23 These accounts do not necessarily exclude one another—they could be parts of one overarching narrative—but the fact that they locate the origins of the procedure at different points in a hundred-year span underscores the lack of clarity that hovers over the procedure’s history. Further obscuring how the procedure came about, they also disagree over whether it was indigenous to the United States or a foreign import. Blackhawk and Mashaw insist that the procedure originated and developed incrementally in the United States.24 Emerson is more receptive to the idea that the procedure owes its existence, at least in part, to German Hegelian influences on late-nineteenth-century American legal ideas and institutions.25
The accounts that describe the sequence of events that directly led to the enactment of notice-and-comment rulemaking in 1946 raise other questions.26 It is widely agreed that the procedure was publicly proposed for the first time in the 1941 final report of the Attorney General’s Committee on Administrative Procedure (AG’s Committee) and, specifically, in the minority’s “additional views and recommendations.”27 Created in 1939, the Committee was tasked with studying the actual procedural workings of the myriad federal agencies that constituted the New Deal Era administrative state, or as Professor Joanna Grisinger has put it, examining “administrative law not just on the books but in action.”28 Given that the Committee’s research staff issued twenty-seven accompanying monographs detailing agencies’ practices,29 it is unsurprising that a number of scholars have looked to these documents as the source of the Committee’s ensuing proposals. As Grisinger and Professor Emily S. Bremer have independently argued, these monographs not only illuminated existing agency practices, but they also informed—or, according to Bremer, “inspired”—the Committee’s proposals, including notice-and-comment rulemaking.30
Nonetheless, these explanations paper over a number of questions and even raise new ones. To begin with, if the procedure emerged from the monographs—Bremer has argued that the monographs provided “the ‘intellectual foundation’ for what became the APA”31—why was it that on multiple occasions, several members of the Committee distanced themselves from these documents?32 That these accompanying studies laid the groundwork for notice-and-comment rulemaking—and were not, as Mashaw put it elsewhere, primarily intended for “burying the critics in facts”—is therefore not at all clear.33
Beyond this, the widely held notion that it was the minority’s “conservative” bent that led it to propose informal rulemaking seems questionable.34 This is especially the case when it comes to Carl McFarland, the former Justice Department official credited as being instrumental in bringing about informal rulemaking and, later, getting the APA passed and signed into law.35 While little is known about him, McFarland appears outside of his work on the APA as a key figure in conceiving and advancing President Franklin D. Roosevelt’s court-packing plan.36 This was quite incongruous with mainstream “conservative” views, to put it mildly. The enigma of McFarland casts at least some doubt on this understanding of the politics of the AG’s Committee and its proposals, including that of notice-and-comment rulemaking.
In sum, the existing histories of notice-and-comment rulemaking either depict its origins in too-broad strokes or are premised on somewhat shaky and incomplete evidence.
One reason for these deficiencies might be that, in the broader story of the winding path toward the passage of the APA, the tale of informal rulemaking has too often been relegated to a minor role. As many have noted, adjudication and ratemaking were the primary modes of administrative action during the New Deal Era.37 These modes of administration, along with the evergreen topic of judicial review, have as a result received most of the attention of historians studying the emergence of modern administration. Even though much time has passed since rulemaking emerged as the staple policymaking tool of administrative agencies in the late 1950s and early 1960s, historians have still struggled to understand the procedure’s early history.38
Perhaps we have been looking in the wrong places. As is true for much of American legal history, a guiding assumption in the history of American administrative law is that important changes and innovations developed endogenously.39 Granted, legal historians have recognized the German influences on Progressive Era thought in the United States, but their work has centered on the deep impact of the Rechtsstaat40 on individual thinkers.41 Yet their work has not demonstrated how this influence, however important, translated into institutional practices. The most likely reason for this is that it most often did not. As Professor Daniel R. Ernst has shown, for all of the Progressive Era interest in German administrative law, the Rechtsstaat model, which sought to constrain administrative discretion through narrow legislative grants of power and was promoted by the likes of Professor Ernst Freund,42 ultimately lost out to a competing Anglo-American model, which allowed for administrative discretion so long as it was subject to ex post judicial review, in the 1920s and 1930s.43 Consequently, while German influences are undoubtedly important in understanding administrative law’s early development among American intellectuals, the fact that the influences ended in a “transatlantic shipwreck”44 shows that they did not create the lasting institutional and procedural practices that now define American administrative law, including informal rulemaking.45 With so many questions about the history of notice-and-comment rulemaking unresolved, it is incumbent on us to look elsewhere for its origins.
This Article excavates the origins of notice-and-comment rulemaking by redirecting attention to the late-nineteenth- and early-twentieth-century transatlantic world of Anglo-American law.46Drawing on original archival sources from ten archives in the United States and England, as well as on extensive published sources, it argues that notice-and-comment rulemaking emerged from this vibrant and largely forgotten universe. Throughout this period, American jurists, legal scholars, and legislators acutely felt that the United States was lagging behind England in developing a body of law that would control and standardize the administrative state. This was especially the case with rulemaking, more regularly known in England as delegated lawmaking. In contrast to its relatively sporadic use in the United States during this period, rulemaking served as an important form of English administrative action and received the bulk of attention when it came to crafting procedural guardrails. Keenly aware of the differences between the constitutional systems in the United States and England, Americans found these procedures appealing—to an extent. They therefore adopted and adapted this mechanism in a series of transplantations in the mid-1930s and early 1940s. The result was notice-and-comment rulemaking as we know it.
Part I reconstructs this transatlantic story beginning with its point of origin: England. When Parliament enacted the Rules Publication Act 1893, it imposed three obligations on administrative bodies. It required them, first, to publicize proposed regulations and consult with entities likely to be affected by the rules; second, to afford Parliament an opportunity to approve or reject the formulated piece of delegated legislation through “laying procedures”; and third, to publish finalized regulations. Not only did the informal consultations help administrative bodies gather pertinent information from regulated entities, but they were also critical in getting interest groups to assent to the proposed regulations. The laying procedures, on the other hand, secured democratic legitimacy for the regulations, ensuring that Parliament—generally taken to be constitutionally supreme—remained the true lawmaker, if only in a nominal sense.
As delegated legislation came to be utilized more and more in England in the early decades of the twentieth century—and especially during and after the First World War—the framework of the Rules Publication Act 1893 came under increasing scrutiny. In response, the government established the Committee on Ministers’ Powers (the Donoughmore Committee) to examine the workings of the English administrative state. When it issued its final report in 1932, the Donoughmore Committee dismissed claims that a new administrative despotism was rising. At the same time, it made a number of recommendations for improving the Rules Publication Act 1893, including eliminating its myriad loopholes and standardizing and expanding the consultation, laying, and publication requirements. After several years of high emotions, consensus over the procedural framework governing delegated legislation finally seemed near.
In the end, little came of these recommendations in England until after the Second World War. But their impact across the ocean in the United States was felt far more immediately and strongly. As Part II details, between 1935 and 1946, Americans imported several key components of the English procedural framework governing delegated legislation and the Donoughmore Committee’s recommended reforms. The 1935 Federal Register Act required that all finalized regulations be published in the newly created Federal Register and was explicitly modeled upon the parallel requirement in the Rules Publication Act 1893. Six years later, the minority’s recommendations in the final report of the AG’s Committee planted the seed of notice-and-comment rulemaking. Its first two recommendations—to publicize proposed regulations and solicit public comments—were intended to build upon and expand the corresponding provisions of the Rules Publication Act. Its third requirement, that agencies issue final rules, augmented the earlier obligation put forth in the 1935 Federal Register Act. Even as the report remained silent about the origins of this procedural cocktail, traces of its English inspirations are visible just beneath its surface.
Latent English influence can also be seen behind the Committee’s inductive approach to studying the American administrative state and the minority’s insistence that these rulemaking requirements apply transsubstantively—that is, across the wide swath of federal agencies. Like other New Deal initiatives designed to rationalize and streamline previously complex and uneven procedural regimes, the push for uniform administrative procedural requirements was inspired by England. When the APA came into effect in 1946, it bore these various English fingerprints.
The Rules Publication Act 1893’s laying procedures and the Donoughmore Committee’s proposed reforms of these procedures, in contrast, did not make it to the United States. This was not for lack of interest. In the 1930s, Roscoe Pound, James M. Landis, and other prominent American lawyers representing a variety of stances on the administrative state called for an increase in congressional scrutiny over rulemaking and even the adoption of procedures akin to English laying requirements. The AG’s Committee, in turn, considered the measure—only to reject it. This decision was a result of several factors. The Committee singled out the procedure’s questionable utility in providing meaningful oversight: “Experience, both in England and in this country, indicates that lack of desire, rather than lack of opportunity, has accounted for the absence of legislative interference with administrative regulations.”47 Beyond this skepticism, the ultimate disinterest in adopting laying procedures is also attributable to the structural differences between England’s parliamentary system and the United States’s separation-of-powers system, the concomitant differences in the role that laying procedures would play, and the demise of the nondelegation doctrine. In the wake of the decision to forgo laying procedures, informal rulemaking assumed the form that is still in place today.
This history has a number of implications. Part III discusses two. First, this history complicates the existing accounts of notice-and-comment rulemaking’s origins—and our broader understanding of the American administrative state. As this Article shows, the foreign legal system that had the deepest influence on the actual configuration of American administrative rulemaking was that of England.48 Critics of rulemaking such as Professor Gary Lawson have likened it to “the kind of prerogative or rump legislation that both British and American revolutionaries worked hard to abolish.”49 But in fact, informal rulemaking developed from within the common-law tradition. Indeed, it developed within a broader and now largely lost world of Anglo-American administrative law. Recovering this lost world is necessary to understand fully how the “fundamental charter” of the administrative state, the APA, emerged.50
Second, this history contributes to contemporary discussions about notice-and-comment rulemaking’s future. This Article emphasizes the fact that American informal rulemaking was only a partial transplantation of English procedures. This fact has proved fateful. On the one hand, this partial transplantation has given rise to notice-and-comment rulemaking, a centerpiece of American administrative governance that was part of the broader “quasi-constitutional” settlement embodied in the APA.51 On the other hand, it may be one cause of the perennial debates over American administrative law’s supposed legitimacy deficit. In light of this history, one might reasonably ask whether it would be wise to complete the transatlantic transplantation and belatedly enact laying procedures in the United States. Without offering a definitive (or satisfying) solution going forward, Part III considers what the APA’s history might tell us about the range of possible answers to that question. Ultimately, by recovering one facet of the lost universe of administrative law and the 1946 APA, this Article aims to reveal the buried roots of our contemporary institutions and enrich the ongoing conversation about ways to improve them.
In the original Administrative Procedure Act (APA), notice-and-comment rulemaking was in Section 4. See Administrative Procedure Act, ch. 324, § 4, 60 Stat. 237, 238-39 (1946). When Congress codified the APA in the U.S. Code, Section 553 became the provision detailing informal rulemaking. See 5 U.S.C. § 553(b) (2018). Because most lawyers and judges refer to the codified provisions of the Act, I will also do so.
See, e.g., William F. Pedersen, Jr., Formal Records and Informal Rulemaking, 85 Yale L.J. 38, 38 (1975) (“Administrative law, it is said, has entered an age of rulemaking.”); Bernard Schwartz, Administrative Law 67 (3d ed. 1988) (concluding that in recent years the “center of gravity” of government policymaking has moved to the notice-and-comment rulemaking process); Emily S. Bremer, The Administrative Procedure Act: Failures, Successes, and Danger Ahead, 98 Notre Dame L. Rev. 1873, 1875 (2023) (“[T]he APA’s informal, notice-and-comment process has been firmly established as the procedure for the development, modification, and repeal of administrative regulations.”). For a sense of the quantity of regulations promulgated, see John M. de Figueiredo & Edward H. Stiglitz, Democratic Rulemaking, in 3 The Oxford Handbook of Law & Economics 37, 38 (Francesco Parisi ed., 2017), which notes that in 2013, agencies finalized over 2,800 regulations while Congress passed only seventy public laws.
Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J., dissenting). The late Professor Richard B. Stewart famously termed this the “traditional model of administrative law,” whereby the administrative state acts “as a mere transmission belt for implementing legislative directives.” Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1675 (1975).
See, e.g., Philip Hamburger, Is Administrative Law Unlawful? 111 (2014) (arguing that informal rulemaking is part of a “cascade of evasions—initially an evasion of law, but then a series of evasions within administrative lawmaking”); Gary Lawson, The Return of the King: The Unsavory Origins of Administrative Law, 93 Tex. L. Rev. 1521, 1533 (2015) (claiming that rulemaking is “precisely the kind of prerogative or rump legislation that both British and American revolutionaries worked hard to abolish”). A growing number of Supreme Court Justices have increasingly embraced this view. See, e.g., Gundy v. United States, 588 U.S. 128, 171 (2019) (Gorsuch, J., dissenting) (“If the separation of powers means anything, it must mean that Congress cannot give the executive branch a blank check to write a code of conduct governing private conduct for a half-million people.”). Chief Justice Roberts and Justice Thomas joined this dissent. See id. at 150.The most recent manifestation of this formalist view is the major-questions doctrine, which is a response to the fear that “major” regulations potentially violate “separation of powers principles.” West Virginia v. EPA, 597 U.S. 697, 723 (2022).
Kristin E. Hickman & Mark R. Thomson, Textualism and the Administrative Procedure Act, 98 Notre Dame L. Rev. 2071, 2100 (2023); see also id. at 2101 (noting that, while the Court “contended that ‘the object’ of notice and comment ‘is one of fair notice,’” it “made no reference whatsoever to the role of public participation in notice-and-comment rulemaking” (quoting Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 591 U.S. 657, 684 (2020))).
Little Sisters of the Poor, 591 U.S. at 682-85. This is not the only time that the Justices have displayed a seeming lack of interest in effectuating the underlying purposes of notice-and-comment rulemaking. See, e.g., Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 248 (D.C. Cir. 2008) (Kavanaugh, J., concurring in part, concurring in the judgment in part, and dissenting in part) (calling modern rulemaking “a laborious, seemingly never-ending process” that “has not been good as a jurisprudential matter, and . . . continues to have significant practical consequences for the operation of the Federal Government and those affected by federal regulation and deregulation”).
See, e.g., Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987) (“The purposes of according notice and comment opportunities were twofold: ‘to reintroduce public participation and fairness to affected parties after governmental authority has been delegated to unrepresentative agencies,’ and to ‘assure[] that the agency will have before it the facts and information relevant to a particular administrative problem, as well as suggestions for alternative solutions.’” (alteration in original) (first quoting Batterton v. Marshall, 648 F.2d 694, 703 (D.C. Cir. 1980); and then quoting Guardian Fed. Sav. & Loan Ins. Corp., 589 F.2d 658, 662 (D.C. Cir. 1978)). This insistence on notice-and-comment rulemaking’s participatory character has not, however, translated into a judicial requirement that agencies address every impactful comment they receive. That said, agencies are obliged to respond to “comments which are of cogent materiality.” United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2d Cir. 1977).
See Cynthia R. Farina, Mary J. Newhart, Claire Cardie & Dan Cosley, Rulemaking 2.0, 65 U. Mia. L. Rev. 395, 402 (2011) (calling notice-and-comment rulemaking “the most transparent and participatory decision-making process used in any branch of the federal government”); Michael Asimow, Public Participation in the Adoption of Interpretive Rules and Policy Statements, 75 Mich. L. Rev. 520, 574 (1977) (“The primary reason that public participation leads to better rules is that it provides a channel through which the agency can receive needed education.”); Michael Asimow, Nonlegislative Rulemaking and Regulatory Reform, 1985 Duke L.J. 381, 402 (“The APA notice and comment procedure infuses the rulemaking process with significant elements of openness, accountability, and legitimacy.”).
See Farina et al., supra note 11, at 402 (describing rulemaking as the most transparent process in the federal government); William N. Eskridge, Jr. & John Ferejohn, The APA as a Super-Statute: Deep Compromise and Judicial Review of Notice-and-Comment Rulemaking, 98 Notre Dame L. Rev. 1893, 1927 (2023) (arguing that informal rulemaking “impose[d] uniformity, transparency, responsiveness, and publicity/notice requirements on administrative lawmaking”).
See E. Donald Elliott, Re-Inventing Rulemaking, 41 Duke L.J. 1490, 1492 (1992) (“Notice-and-comment rulemaking is to public participation as Japanese Kabuki theater is to human passions—a highly stylized process for displaying in a formal way the essence of something which in real life takes place in other venues.”); Jason Webb Yackee & Susan Webb Yackee, A Bias Towards Business? Assessing Interest Group Influence on the U.S. Bureaucracy, 68 J. Pol. 128, 129 (2006) (“[B]usiness interests enjoy disproportionate influence over rulemaking outputs despite the supposedly equalizing effects of notice and comment procedures.”); Michael Sant’Ambrogio & Glen Staszewski, Democratizing Rule Development, 98 Wash. U. L. Rev. 793, 812-14 (2021) (discussing barriers to public participation and the resulting low levels of public comments); Bijal Shah, Administrative Subordination, 91 U. Chi. L. Rev. 1603, 1612 (2024) (“[A]gencies engage in behavior, in the implementation and enforcement of regulatory law, that subordinates the interests of vulnerable and marginalized people to institutional priorities.” (footnote omitted)). For a critique of these positions, which often call for more procedural safeguards, see generally Nicholas Bagley, The Procedure Fetish, 118 Mich. L. Rev. 345 (2019).
James O. Freedman, Crisis and Legitimacy: The Administrative Process and American Government 9 (1978). This is not to say that notice-and-comment rulemaking no longer enjoys support in some quarters. It most certainly does. See Thomas W. Merrill, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State 243-57 (2022) (arguing that Chevron deference should be limited to interpretations adopted through notice-and-comment rulemaking and not through adjudications).
Much of this scholarship has been termed “APA originalism.” See Evan D. Bernick, Envisioning Administrative Procedure Act Originalism, 70 Admin. L. Rev. 807, 809 (2018); Jeffrey A. Pojanowski, Neoclassical Administrative Law, 133 Harv. L. Rev. 852, 899 (2020); Kathryn E. Kovacs, Superstatute Theory and Administrative Common Law, 90 Ind. L.J. 1207, 1209 (2015) (detailing the deliberation behind the APA). See generally Christopher J. Walker, The Lost World of the Administrative Procedure Act: A Literature Review, 28 Geo. Mason L. Rev. 733 (2020) (tracing the doctrinal justification of judicial deference to its origins); Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908 (2017) (same). While Emily S. Bremer’s work has also explored the APA as “originally designed,” she has eschewed APA originalism in favor of an evolving judicially crafted administrative common law. See Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. 377, 439 (2021). This is also the case for Eskridge & Ferejohn, supra note 14, at 1893.
See Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 94 (2019) (describing how the Forest Service first distributed proposals to interested persons for comment and then “held week-long, deliberative meetings” with grazing organizations before finalizing these regulations). Even as the APA eventually settled for a more “threadbare” and “thin form of participation” in notice-and-comment rulemaking, it drew, according to Blake Emerson, from these more rigorous procedures. Id. at 127-28.
See McKinley, supra note 21, at 1546. This insistence is in large part a reaction to originalist claims that the administrative state and administrative law were not part of Founding Era constitutional structure. See, e.g., Hamburger, supra note 5, at 8; Gary S. Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1233 (1994). For an overview of this debate, see Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288, 1298 n.40 (2021).
A substantial body of scholarship has reexamined the first half of the twentieth century and explicated the institutional histories of the modern American administrative state and administrative law, including the 1946 APA. For examples of such scholarship, see generally George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557 (1996); Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 (2014); Joanna L. Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal (2014); Emerson, supra note 23; Mark V. Tushnet, The Hughes Court: From Progressivism to Pluralism, 1930 to 1941 (2022); Morton Horwitz, The Transformation of American Law, 1870-1960 (1992); G. Edward White, The Constitution and the New Deal (2000); Bremer, supra note 19; Emily S. Bremer, The Undemocratic Roots of Agency Rulemaking, 108 Cornell L. Rev. 69 (2022); Eskridge & Ferejohn, supra note 14; Reuel E. Schiller, Policy Ideals and Judicial Action: Expertise, Group Pluralism, and Participatory Democracy in Intellectual Thought and Legal Decision-Making, 1932-1970 (1997) (Ph.D. dissertation, University of Virginia) (on file with author); McNollgast, The Political Origins of the Administrative Procedure Act, 15 J.L. Econ. & Org. 180 (1999); Reuel E. Schiller, The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law, 106 Mich. L. Rev. 399 (2007) [hereinafter Schiller, The Era of Deference]; and Reuel E. Schiller, Reining in the Administrative State: World War II and the Decline of Expert Administration, in Total War and the Law: The American Home Front in World War II 185 (Daniel R. Ernst & Victor Jew eds., 2002).
Bremer, supra note 19, at 380 (quoting Kenneth Culp Davis, Walter Gellhorn & Paul Verkuil, Present at the Creation: Regulatory Reform Before 1946, 38 Admin L. Rev. 511, 513-14 (1986)); see also Thomas W. Merrill & Kathryn T. Watts, Agency Rules with the Force of Law: The Original Convention, 116 Harv. L. Rev. 467, 524 (2002) (describing the final report and the monographs as having “laid the intellectual groundwork for the drafting of the APA”).
E. Blythe Stason told one concerned lawyer that the monographs “d[id] not represent the views of the Committee.” Letter from E. Blythe Stason to Louis G. Caldwell (Feb. 21, 1940) (on file with Univ. of Mich., Bentley Hist. Libr., E. Blythe Stason Papers, Various State & Pro. Activities, Box 12, Attorney General’s Committee on Administrative Procedure Folder). Likewise, Arthur T. Vanderbilt underscored that each monograph “from the method by which it was prepared, necessarily presented to a very considerable degree the agency’s point of view as to how the particular act under consideration should be enforced.” Administrative Procedure: Hearings on S. 674, S. 675, and S. 918 Before a Subcomm. of the S. Comm. on the Judiciary, Part 1, 77th Cong. 1306 (1941) [hereinafter Administrative Procedure Hearings] (statement of Arthur T. Vanderbilt, Member, Att’y Gen.’s Committee on Administrative Procedure). Walter Gellhorn also went out of his way to state in the front matter of each monograph that the research embodied “the views of the staff” and its publication “indicates neither approval nor disapproval by the Committee.” See, e.g., Walter Gellhorn, Preface to Att’y Gen.’s Comm. on Admin. Proc., The Walsh-Healey Act: Monograph No. 1 (unnumbered page before table of contents) (1939).
See Davis et al., supra note 20, at 514, 518, 520, 523; Paul R. Verkuil, The Administrative Procedure Act at 75: Observations and Reflections, 28 Geo. Mason L. Rev. 533, 535-36 (2021) (declaring that Carl McFarland should be recognized as one of the “real founder[s]” of the APA given his central role in both drafting the minority report and turning it into law).
See Ashley Sellers, Carl McFarland—The Architect of the Federal Administrative Procedure Act, 16 Va. J. Int’l L. 12, 13-15 (1975); William E. Leuchtenburg, The Origins of Franklin D. Roosevelt’s “Court-Packing” Plan, 1966 Sup. Ct. Rev. 347, 391; see also Laura Kalman, FDR’s Gambit: The Court Packing Fight and the Rise of Legal Liberalism 18-19, 18 & 315 n.42 (2022) (describing McFarland’s close relationship with Attorney General Homer Cummings).
On the emergence of notice-and-comment rulemaking in the 1960s and 1970s, see, for example, Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 Sup. Ct. Rev. 345, 376; Schiller, supra note 37, at 1145-49; and Daniel A. Farber & Anne Joseph O’Connell, The Lost World of Administrative Law, 92 Tex. L. Rev. 1137, 1143-44 (2014).
For examples of scholarship that relies on this assumption, see generally William J. Novak, New Democracy: The Creation of the Modern American State (2022); Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (2013); Daniel Carpenter, The Forging of Bureaucratic Autonomy: Reputation, Networks, and Policy Innovation in Executive Agencies, 1862-1928 (2001); William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (1996); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Harvard Univ. Press rev. ed. 1995); Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982); and William E. Nelson, The Roots of American Bureaucracy, 1830-1900 (1982).
The concept of the Rechtsstaat emerged in nineteenth-century Germany and sought to strike a balance between a recognition of the necessity of growing state power and citizens’ individual freedoms by controlling administrative action through legal means and in particular through a special administrative judicial system. For a succinct overview, see Bernardo Sordi, Révolution, Rechtsstaat, and the Rule of Law: Historical Reflections on the Emergence and Development of Administrative Law, in Comparative Administrative Law 23, 26-31 (Susan Rose-Ackerman, Peter L. Lindseth & Blake Emerson eds., 2017).
Americans continued to reject German and continental administrative legal structures in the 1930s and 1940s. See Noah A. Rosenblum, The Antifascist Roots of Presidential Administration, 122 Colum. L. Rev. 1, 43-54 (2022). What is more, in one notable area, it was conservative opponents of the New Deal who were the ones to call for emulating continental practice: the creation of administrative courts. In its annual reports spanning 1933 to 1937, the American Bar Association’s (ABA’s) Special Committee on Administrative Law put forth proposed bills that would establish administrative courts; these courts were explicitly modeled on French and German administrative legal systems. See, e.g., Shepherd, supra note 26, at 1574-90; Report of the Special Committee on Administrative Law, 57 Ann. Rep. A.B.A. 539, 549 (1934) (“The preferable way of accomplishing the desired result, in the committee’s opinion, is the establishment of a federal administrative court, patterned to some extent, but not entirely, after the administrative court system in France.”). Like Ernst Freund’s attempts, this effort ended in failure. See Shepherd, supra note 26, at 1590-93. Indeed, at the very same time that it abandoned its proposed administrative courts, the ABA’s Special Committee on Administrative Law turned to English administrative law as its model. See infra Section II.B.3.
My contextualization is inspired first and foremost by Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age 247-61 (1998). Daniel T. Rodgers does not discuss notice-and-comment rulemaking but masterfully reconstructs the intellectual and political settings in which the procedure and Anglo-American administrative law developed.
Indeed, even the early American scholars held England in special regard. Frank J. Goodnow, for instance, routinely juxtaposed American and English practice to that of continental systems. See Frank J. Goodnow, The Principles of the Administrative Law of the United States 59 (1905) (discussing “one of the fundamental principles of Anglo-American administrative law”). Ernst Freund and Bruce Wyman did the same if only to bemoan the “so little attention” that administrative law had received in the two countries. Ernst Freund, The Law of the Administration in America, 9 Pol. Sci. Q. 403, 403 (1894); accord Bruce Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers 2 (1903).
Adrian Vermeule, Law’s Abnegation: From Law’s Empire to the Administrative State 39 (2016); see also Cass R. Sunstein & Adrian Vermeule, Libertarian Administrative Law, 82 U. Chi. L. Rev. 393, 466 (2015) (“The vision underpinning [two Supreme Court] cases is that the APA should be treated as an organizing charter for the administrative state . . . .”); Scalia, supra note 38, at 363 (“[T]he Supreme Court regarded the APA as a sort of superstatute, or subconstitution, in the field of administrative process . . . .”).