18989Administrative Common Law Original Meanin g Judicial Review Under APA » Publications » The Federalist Society
- Oct 6, 2012The plot clears up with this insight on the 4th branch of Gov't FDR gave
and named as such when he asked Congress to pass his programs
even though no Constitutional provisions to do so. hobot
" In 1946 Congress enacted a "comprehensive statement of the right, mechanics, and scope of judicial review."2 Section 10 of the Administrative Procedure Act was designed to prescribe "when there may be judicial review and how far the court may go in examining into a given case," and the courts were supposed to "prevent avoidance of the requirements of the [Act] by any manner or form of indirection.3" "
" That was the ambition of the 79th Congress, but the reality has quite been different. Decades after the enactment of the APA, Professor Kenneth Culp Davis accurately observed: "Perhaps about nine-tenths of American administrative law is judge-made law . . . . Most of it is common law in every sense, that is, it is law made by judges in absence of relevant constitutional or statutory provision."4 Common law has been particularly prevalent in judicial review, an area that Professor Louis Jaffe described in 1965 (again, quite accurately) as encompassing "a whole congeries of judicial theories and practices," which constitutes "the common law of review, and which is a significant part of the `administrative law' of the jurisdiction."5 "