This essay was authored by ACUS Senior Fellow Betty Jo Christian. It is the second part of a series, ACUS and the APA: Celebrating 75 Years of the Administrative Procedure Act, in which members of the ACUS community reflect on the agency’s connection to the foundational statute of federal administrative law.
The views expressed in this essay are those of the author and do not necessarily represent the views of ACUS or the federal government.
To the world in general, ACUS may be known by its recommendations. What is often overlooked is ACUS’ influence on the changing concepts of administrative agencies and their roles over the years since its inception.
My own interest in ACUS was piqued when, shortly after its creation, its first chairman, Jerre Williams, was appointed. Williams had been one of my favorite professors at the University of Texas School of Law from which I had graduated only a few years earlier. But my personal involvement with ACUS did not begin until the late 1970s when I became the Interstate Commerce Commission’s representative to ACUS. At that point, I never dreamed that my active involvement with ACUS would continue for over 40 years.
Although I did not realize it until much later, one of the keys to the continued significance and influence of ACUS over this long period of time has been the creation of the “Senior Fellows.” By enabling ACUS to continue to benefit from the active involvement of its non-government members over lengthy periods of time while continually bringing in rising stars in the world of administrative law as public members, ACUS has been able to have the best of both worlds. Through the inclusion of young professors and experts from other non-government organizations engaged in the expanding world of administrative agencies, new ideas can be brought to ACUS without losing the wisdom and expertise of those who have been active in this work for years.
Beyond its structures, ACUS also benefited greatly from the operational framework established by its early chairmen, including, in particular, the creation of committees dealing with specific subjects, the employment of consultants to perform in-depth analysis of specific administrative law issues and—in some ways most important—the networking encouraged by the opportunities provided for social gatherings during the Plenary Sessions.
Similarly, the practice of employing young administrative law professors as consultants has had long-term benefits for ACUS. Those that have proved to be outstanding consultants are often subsequently appointed as public members—and, after they have reached the maximum term of service, continue to be active as Senior Fellows, to the benefit of both ACUS and students of administrative law throughout the country.
At the first Plenary Sessions I attended, I was hesitant about going to the reception held on the evening of the opening day when I knew so few of the other people. But as I gathered up my courage and shyly entered the reception hall, I was astonished to be greeted by a number of members who warmly introduced themselves and welcomed me into the group. Upon learning which agency I represented and my involvement in the regulatory reform movement, several people took it upon themselves to introduce me to people from other agencies far removed from my own field of transportation who were wrestling with similar issues.
These introductions led to informal meetings to discuss the issues and concerns we had in common, including the overriding issue of making certain that our reforms were accomplished in full compliance with all applicable Administrative Procedure Act (APA) requirements. If those reforms were ultimately overturned by the courts for APA violations, all our hard work would accomplish nothing. Moreover, from a personal standpoint, these gatherings ultimately produced a network which in future years, after I had left the government for private practice, led me to seek them out as local counsel, consultants, expert witnesses, and, in a few instances, lifelong friends.
One of the most fascinating moments at a Plenary Session occurred, not during the meeting itself, but during a break. A reviewing court had just delivered an opinion in which a rather vague, unclear paragraph had caused confusion as to whether the court was announcing a new interpretation of a provision of the APA, or was just guilty of loose, sloppy language. Professors Walter Gellhorn and Kenneth Culp Davis got into a discussion of this issue, and it quickly became apparent that they held diametrically opposite views on this question. The argument escalated, with the antagonists vehemently advancing their views, while a fascinated group of other ACUS members (including myself) gathered to watch. Eventually an ACUS representative came out to try to shepherd his members back into the conference room so the official meeting could resume, but was studiously ignored as the group of onlookers continued to listen intently to this “Battle of the Titans.” Only when the professors mutually decided to end the debate, with neither having changed his view, did the group return to the main conference room to permit the official program to resume.
The two professors had unintentionally provided a real-life seminar on the type of controversial issues arising as the APA is applied to the activities being undertaken by the array of new agencies engaged in new types of regulatory activities. This exchange brought home to me the realization that, unlike most other fields of law, administrative law was not a set of well-established final rules and principles. It was instead still a work in progress and was likely to be so for many years.
The continually evolving nature of administrative law was brought home to me most forcefully by my own experience with ACUS’s Committee on Ratemaking and Economic Regulation, on which I had served as chairman for a number of years. But this committee was subsequently abolished as the scope of economic regulation declined. And with the establishment of numerous new agencies with very different regulatory mandates, ACUS increasingly focused on the issues raised by the new regulatory regimes to which the bulk of its recommendations were being directed.
The final key component of ACUS’s structure was the involvement of a liaison from the Judicial Conference. Whatever the original purpose may have been, the relationship between ACUS and the courts reviewing agency decisions has evolved in ways that no one could have anticipated. At the time ACUS was created, no one could have predicted that an early chairman of ACUS and its longtime liaison from the Judicial Conference would ultimately become Justices of the Supreme Court of the United States, or that at least two other members of the Supreme Court would have been active participants in ACUS. Yet this is what actually did happen as ACUS’s third chairman, Antonin Scalia, after further government service and a distinguished career as a law professor and judge on the Court of Appeals for the D.C. Circuit, was appointed to the Supreme Court where he served for 30 years until his death in 2016. Nor could they have foreseen that ACUS’s longtime Judicial Conference liaison, Stephen Breyer, would also be appointed to the Supreme Court, where he is currently embarking upon his 27th year of service.
Other ACUS alumni who have served on the Supreme Court include former Chief Justice William Rehnquist, who was a member of the ACUS Council, and Justice Elena Kagan, who continues to be a Senior Fellow. No one can know to what extent their ACUS activities influenced their approaches to the review of agency decisions, but it certainly formed a part of the mosaic upon which each Justice’s approach was developed.
And the impact of ACUS alumni on the judiciary has not been limited to the Supreme Court. Indeed the very first ACUS chairman, Jerre Williams, served for 13 years on the Court of Appeals for the Fifth Circuit, while a subsequent chairman, Loren Smith, was appointed to the Court of Federal Claims in 1995 where he is still serving as a Senior Judge. Parties in cases before courts involving appeals from decisions of administrative agencies can only benefit from the broad knowledge of the APA such judges have obtained through their ACUS involvement.
Looking back over my own long involvement, I cannot help reflecting upon the fact that ACUS must be one of the very few government agencies whose value and significance has increased, rather than declined, over the years. As the number of government agencies has multiplied and the scope of their regulatory authority has continued to expand, ACUS has become the great “marketplace of ideas” for issues affecting multiple administrative agencies. Numerous agencies struggle with issues arising in connection with such matters as Office of Information and Regulatory Affairs review of agency regulations, compliance with Freedom of Information Act requests, the appropriate use of new procedural techniques such as hearings conducted by video or other remote technology, the appropriate use of policy statements and guidance documents, the use of cost-benefit analysis, and the protection of confidential information.
With respect to these and other cutting-edge issues, ACUS has become a resource of enormous value to the agencies and the public. Its unique combination of members drawn from the agencies themselves and members of the key non-governmental groups such as lawyers, law professors and representatives of other organizations involved with administrative law issues has put ACUS in the position of being a key advisor on administrative law and the APA. And the continued involvement of its Senior Fellows, together with the ready availability of ACUS recommendations on its website, ensure the lessons of the past are not forgotten.
In sum, the influence of ACUS on the changing and expanding world of administrative agencies is far greater than anyone could have reasonably expected when this very small, low-budget agency was originally created. Its unique structure, with its mixture of public and private sector members, its retention of active members through creation of the Senior Fellows role, and its use of an ever-changing group of consultants has proven to be enormously effective. It has been a privilege for me to have the opportunity to be a part of all this.
Betty Jo Christian is a Senior Fellow of ACUS and previously served as a Public Member from 1980 to 1989 and Government Member from 1977 to 1979. Mrs. Christian is a Retired Partner at Steptoe & Johnson. She served as a Commissioner on the Interstate Commerce Commission from 1976 to 1979.