The Limits of the Policy Machinery of Administrative Law

As we just saw with Wong Yang Sung, one approach to interpreting ambiguities in the "fierce compromise" that is the APA, see George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557 (1996), is to refer to the underlying purposes of the law. However, as you may or may not have discovered in your legislation and regulation class, the idea of interpreting statutes according to their purposes is somewhat controversial. The ascendance of textualism in the federal courts has led to more suspicion of such purposivist approaches to interpretation.

In the excerpt that follows, the authors survey how courts and scholars have started to move away from the policy balancing approach of Wong Yang Sung and to incoporate more of the textualism and originalism that is in vogue in contemporary jurisprudence. 

As you read the following excerpt, think about whether textualism and originalism can provide clear enough answers to entirely obviate the need for the kind of policy balancing that Wong Yang Sung and the trichotomy endorse. As the authors conclude, APA originalism and APA textualism have many virtues, but they are not quite willing to follow it all the way to its logical conclusions. Why not? You likely will not have enough information at the start of this course to completely evaluate these questions, but it helps to keep the question in mind, especially since many of the most avulsive changes in administrative law today are motivated by originalist/textualist commitments on the part of judges.