UCLA School of Law

This Essay, written for the Chicago-Kent Law Review’s Symposium on the 75th anniversary of the federal Administrative Procedure Act (APA), examines the meaning of “policy” under the Act. The concept of policy is central to key debates in contemporary administrative law. Critics of the administrative state variously contend that agencies cannot constitutionally make policy, that Congress does not impliedly delegate to agencies’ the power to settle major policy questions, that courts should not defer to agencies’ policy judgments that implicate questions of law, or else that courts should only defer when agencies proceed by rulemaking. This Essay relies on the APA’s text and legislative history to challenge these specific legal assertions and the broader anti-administrative ideology that often underlies them. The Act’s definition of “rule” explicitly contemplates that agencies would make “policy.” The APA’s drafters understood policy both to refer to general governmental goals and the means to carry them out. In the decade long, constitutional debate leading up to the APA, a cross-ideological and inter-branch consensus crystallized that Congress could delegate policymaking discretion—including over “important” matters—to executive agencies, at least so long as agencies operated through fair procedures. The Act’s text and history also indicate that courts should defer to agencies’ interpretations that raise policy questions, thus affirming the much maligned Chevron doctrine. The APA permits agency policymaking through adjudication as well as rulemaking, so long as adjudicatory policy is made by the agency itself sitting on review of an initial determination made by impartial decision-makers. More broadly, the history of the APA sheds light on the purpose and structure of the administrative state. Policy is an instrumental, collective, and egalitarian enterprise in which agencies pursue public projects. The Act’s determination that agencies may contribute to legal policymaking in specific forms demands the Court’s respect in the present.