The Policy Machinery of Administrative Law: Wong Yang Sung v. McGrath

One way to deal with indeterminacy in administrative law is try to understand the purpose(s) of administrative law and align decisions with our best sense of those purposes. In fact, courts have been doing precisely this since the very early days of the Administrative Procedure Act. The following case—Wong Yang Sung v. McGrath—is a classic example of the Supreme Court’s efforts to sketch out what might be called the policy machinery of administrative law: that is, the purposes that should motivate administrative law’s development. Much of the background is omitted, but the dispute surrounded whether the APA should be interpreted as applying to deportation proceedings.

As you read the case, think about what purposes the Court is inferring from the history of the Administrative Procedure Act. Are these purposes comprehensive, or can you identify others that the Court is not acknowledging but that should play a role? What are the “opposing social and political forces” which have “come to rest” in the APA? How should the Court go about interpreting what the APA requires when the opposing purposes behind the Act conflict with each other? Where in the APA is the Court getting these purposes?

These are not stale questions. Recently, leading administrative law scholars Cass Sunstein and Adrian Vermeule wrote a book called Law and Leviathan: Redeeming the Administrative State, in which they argued that the administrative state, when it works well, promotes a coherent theory of law's "morality," and they explicitly ground their approach as a "faithful translation or interpretation of Justice jackson's project in Wong Yang Sung." Cass R. Sunstein & Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State 9 (2020).

In class, we'll discuss whether there is an essential purpose, morality, or whatever you want to call it that should animate our interpretation of administrative law. Expect there to be some disagreement...