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Borry, Erin L.
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E-Governance and Civic Engagement.
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Article contents
The Federal Administrative Procedure Act
Published online by Cambridge University Press: 01 August 2014
Extract
The President's signature of the new Administrative Procedure Act completed the second or legislative phase of the reform of administrative procedure which began with the introduction and passage of the ill-fated Walter-Logan bill in 1939–40. The investigatory phase which preceded it had its beginning in the reluctant recognition accorded administrative law as a separate discipline at about the turn of the century. The refusal to recognize the existence of administrative law gave way before a volume of literature on the subject, and became transformed into a criticism of the administrative process itself. The movement for reform of which the act of 1946 was the culmination has come largely in answer to these criticisms. Ignoring differences in phraseology and attacks on specific agencies, most critics appear to agree on the following arguments:
(1) The administrative process is essentially dangerous in that it ignores the traditional American theory of the separation of powers, a principal protection against tyranny and dictatorship in the United States. This argument may appear in several forms. Sometimes it is said that administrative law is to be deplored because it is typical of alien countries which are not as advanced politically as we. In the hands of the American Bar Association, this argument is used to point up dangers inherent in any system that has a tendency to limit judicial review. And sometimes the allegation is merely that the administrative process is a violation of the separation theory, leaving the evils of such a violation to implication.
- Type
- American Government and Politics
- Information
- Copyright
- Copyright © American Political Science Association 1947
References
1 Pub. Law 404, Ch. 324, 79th Cong., 2nd sess., approved June 11, 1946.
2 Cf. Frankfurter, Felix, “The Task of Administrative Law,” Univ. of Pa. Law Rev., Vol. 75, p. 614 (1927)Google Scholar.
3 The volume of such criticism is almost unlimited. But see, as leading examples, Beck, James M., Our Wonderland of Bureaucracy (New York, 1932)Google Scholar; Allen, Carleton K., Bureaucracy Triumphant (London, 1931)Google Scholar; Amer. Bar Assoc. Reports, LVII, 407Google Scholar; LIX, 539; LX, 136; LXI, 723; LXII, 789; LXIII, 331; LXIV, 574; LXV, 215; LXVI, 439; LXVII, 226; LXVIII, 249; LXIX, 271.
4 Cf. Haines, Charles G., “The Adaptation of Administrative Law and Procedure to Constitutional Theories and Principles,” in this Review, Vol. 34, p. 12 (1940)Google Scholar; Frank, Jerome, If Men Were Angels (New York, 1942), Chaps. 13–15Google Scholar.
5 This point of view is explored in the Report of the AdministrativeLawCommittee of the District of Columbia Chapter of the National Lawyers Guild, Law. Guild Rev., Vol. 5, p. 81 (1945)Google Scholar.
6 President's Committee on Administrative Management, Report with Special Studies (Washington, D. C., 1937), 41–42Google Scholar.
7 S. 1835, 73rd Cong., 1st sess.; S. 3787 and H.R. 12297, 74th Cong., 2nd sess.; S. 3676, 75th Cong., 3rd sess.; H.R. 234, 76th Cong., 1st sess.; S. 916 and H.R. 4235, 76th Cong., 1st sess.
8 H.R. 6324, 76th Cong., 3rd sess. Cf. Amer. Bar Assoc. Reports, LXIII, pp. 331 ff.Google Scholar
9 For the message, see 76th Cong., 3rd sess., House Doc. No. 986.
10 Attorney-General's, Committee on Administrative Procedure, Final Report (Washington, D. C., 1941)Google Scholar.
11 S. 675, 77th Cong., 1st sess.
12 S. 674, 77th Cong., 1st sess.
13 H.R. 3464 and S. 918, 77th Cong., 1st sess.
14 Senate Committee on the Judiciary, Hearings on S. 674, S. 675, and S. 918 77th Cong., 1st sess.
15 H.R. 5081 and S. 2031, 78th Cong., 1st sess. Cf. Amer. Bar Assoc. Jour., Vol. 30, p. 226 (1944)Google Scholar.
16 H.R. 1203 and S. 7, 79th Cong., 1st sess.
17 The Committee on Administrative Law of the American Bar Association issued at about this time a monograph, Legislative Proposals on Federal Administrative Procedure (Chicago, 1944)Google Scholar, which discussed the pattern of the bills and compared them with the Association's declaration of policy on the subject adopted in 1941.
18 The Association's Committee on Administrative Law calls the final statute a revision of the minority proposals. Amer. Bar Assoc. Jour., Vol. 31, p. 624 (1945)Google Scholar.
19 H.R. 184 and H.R. 1206, 79th Cong., 1st sess.
20 For the text of the letter, see Amer. Bar Assoc. Jour., Vol. 31, p. 619 (1945)Google Scholar.
21 Pub. Law 404, Ch. 324, sec. 7 (c), 79th Cong., 2nd sess.
22 Ibid., sec. 10.
23 Ibid., sec. 10 (e).
24 Chicago, etc. Ry. Co. v. Babcock, 204 U. S. 585 (1907); Boggs & Buhl, Inc. v. Comm. of Int. Rev., 34 F. (2nd) 859 (CCA. 3rd, 1929).
25 No. Amer. Cold Storage Co. v. Chicago, 211 U.S. 306 (1908); Bragg v. Weaver, 251 U.S. 57 (1919); Rindge Co. v. Los Angeles, 262 U.S. 700 (1923); Nickey v. Mississippi, 292 U.S. 393 (1934); Driscoll v. Edison L. & P. Co., 307 U.S. 104 (1939).
26 Pub. Law 404, Ch. 324, 79th Cong., 2nd sess., Sec. 9 (b).
27 See Attorney-General's Committee on Administrative Procedure, Document 186, pt. 4. The orders referred to are those issued under Sec. 19 of the Merchant Marine Act of 1920 (41 Stat. 988).
28 This doubt seems to originate with Keller v. Potomac Electric Co., 261 U.S. 428 (1923). Cf. Inland Empire Council v. Millis, 325 U.S. 697 (1945).
29 Cf. Fuchs, Ralph P., “Procedure in Administrative Rule-Making,” Harvard Law Rev., Vol. 52, p. 259 (1938)CrossRefGoogle Scholar.
30 See Arnold, Thurman W., “Trial by Combat and the New Deal,” Harvard Law Rev., Vol. 47, p. 913 (1934).CrossRefGoogle Scholar
31 The trial and error method is considered one of the prime virtues of the administrative process by Professor Dickinson. See Dickinson, John, Administrative Justice and the Supremacy of Law (New York, 1927)Google Scholar.
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