Textualism and the Administrative Procedure Act

In recent years, the Supreme Court occasionally has applied a more limited approach to textualist reasoning that, if applied to the APA, could expand the perceived gulf between textualism and existing administrative law doctrine. Our purpose with this Essay is to explore the implications of this trend for APA interpretation, particularly as it might apply to agency rulemaking. We do not purport to address critics of textualism as an interpretive methodology; we speak primarily to those who are persuaded of textualism’s merits. We also will not try to resolve all the many disagreements about textualism’s variations or the APA’s meaning. For that matter, we do not address whether a more limited textualist approach to statutory interpretation might be appropriate for statutes other than the APA. But for judges and scholars inclined to apply textualist reasoning to questions of APA interpretation, our goal is to refute claims that adhering to textualism requires rejecting many or even most longstanding interpretations of APA rulemaking requirements. More normatively, we are concerned that a version of textualism that reduces the APA’s provisions, one by one, to their narrowest reading risks eroding APA rulemaking procedures to a degree that cannot possibly be reconciled with congressional intent. In Part I, we briefly elaborate the arguable conceptual challenges of APA interpretation using textualist methodology. In Part II, we examine a few key instances in which the Supreme Court has contemplated the APA’s text. Taking the Court’s trend toward a stricter or more limited textualism seriously, in Part III, we highlight several longstanding interpretations of the APA that could be in peril under that version of textualism. We also offer alternative textualist constructions of the APA’s provisions that support those same longstanding interpretations. Given space limitations, we focus principally on provisions associated with agency rulemaking and judicial review thereof, leaving other APA interpretive questions for another day. Based on that analysis, we offer concluding thoughts that a more flexible textualism is more appropriate when interpreting the APA