Administrative Procedure Act IV
Bill Long 10/26/05
From Roscoe Pound's Assault to the President's Veto
The purpose of this essay is to trace the prehistory of the APA from the time that Roscoe Pound took over the chairmanship of the ABA's Committe on Adminstrative Law in 1938 until President Roosevelt vetoed the pro-ABA (anti-Roosevelt) Walter-Logan bill in December 1940. The issues hammered out in this two-year period would influence the final shape of the 1946 legislation.
The Role of Roscoe Pound
I have elsewhere presented aspects of the biography of the prodigiously learned Roscoe Pound, Dean of Harvard Law School from 1916-36. When Pound took over the chairmanship of the ABA's committee in 1938 he completely reframed the debate on the ABA's proposed reforms, using rhetoric that likened opposition to administrative reform to communism and fascism, two of the biggest threats to the USA at the time. Here is a species of his rhetoric. After stressing that just governments required strong judicial checks and balances, he said:
"The antithesis [of checks and balances] is the proposition recently mantained by the jurists of Soviet Russia that in the socialist state there is no law but only one rule of law, that there are no laws--only administrative ordinances and orders" (quoted in Shepherd, 1591).
When a most respected academic dean is making statements such as this, it is not long until other ABA-types began to characterize the huge struggles in the world at the time, between fascism and democracy, in terms that looked like the fight between the "good-guys" (the ABA) and the "bad-guys" (supporters of Roosevelt). When Republicans made significant gains in the Congressional midterm elections in 1938, they were emboldened yet further. They aregued that centralization of administrative power in agencies was just another naked power grab by a despotically-inclined chief executive.
The Roosevelt Adminstration Strikes Back
Early in 1939, after the Walter-Logan bill was introduced (see below), Roosevelt's attorney general (and future Supreme Court Justice) Frank Murphy announced the creation of the Attorney General's Committee on Administrative Procedure. Consisting of twelve members, most of whom were New Dealers, the Committee's reasearch director was the very "pro-administration" law professor from Columbia, Walter Gellhorn. He directed a thorough and "scientific" review of adminstrative agencies, interviewing officers and practitioners who had cases before agencies, and then wrote a series of monographs, 474 pages in length, on the functioning of the agencies. The clear goal was to undercut the work of the ABA and the rhetoric of Pound and stress that their proposals were guided by the mistaken notion that judges were necessary to enable the smooth functioning of the administrative state. The judiciary had already shown an "arrogant assumption of power." Giving them more power would be irresponsible.
The Walter-Logan Bill
But the Roosevelt administration was clearly still on the defensive. This is evident through the passage of the Walter-Logan bill late in 1940. Building on the ABA proposal discussed in the previous essay, the bill added two distinctive features that were designed to strengthen it yet further or make it palatable to a broader base. Before mentioning those features, I reiterate the two significant contributions of earlier proposals: (1) to allow judicial review for anyone who felt "aggrieved" by an agency adjudication and (2) to require a "notice and comment" period for all proposed regulations before they were adopted by an agency. The two additional features of this bill were to incorporate a "substantial evidence" rule and a list of agencies exempt from the reach of the statute. A word on each would be helpful.
One of the important issues in appellate law generally is the "standard of review" of lower court or agency decision. A de novo review, for example, allows the reviewing court to delve into the record with as much completeness as the lower court, while a "scintilla of evidence" rule only allows reversal of a lower court's decision if there was not the slightest trace of evidence to support its holding. Earlier versions of the ABA proposals had suggested an "arbitrary and capricious" standard--meaning that reversal of a lower tribunal would only be appropriate if it had engaged in this kind of decision. But in the Senate's floor debate on the measure, the "substantial evidence" rule was approved. This meant that a lower court or agency decision need only be upheld if the decision rested on substantial evidence. This was a victory for the "judicial review" approach.
Second, as a means of building a larger constituency, the Walter-Logan bill exempted many, many agencies from the reach of the legislation. Though more than 15 pre-New Deal agencies were exempt, such as the Federal Trade Commission and Interstate Commerce Commission, only four New Deal agencies would be exempt from the reach of the statute. The bill passed by an impressive 282-96 margin in the House, though a much slimmer margin in the Senate. Because the votes were about a year apart, Shepherd believes that this indicates a growing sense that Roosevelt had risen from the setbacks of the late 1930s and was establishing himself again as an almost impregnable force.
Though the Walter-Logan bill passed both Houses by December 1940, the President vetoed the bill, claiming that it would severely restrict his ability to govern. The bill, in the President's words "would produce the utmost chaos and paralysis in the administration of the Government at this critical time." Congress was unable to override his veto. By the beginning of 1941, then, it looked as if stalemate was the operative word.
The concluding essay takes us to the approval of the bill in 1946.