AbstractIn Perez v. Mortgage Bankers, the Supreme Court struck down a rule of administrative common law on the grounds that it was inconsistent with the Administrative Procedure Act (APA). But instead of simply respecting Congress’s deliberate choices, the Court continues to weigh policy considerations. The Court shows no sign of relinquishing its self-appointed position as arbiter of what is good and bad, wise and unwise in administrative law.
This Forum Essay argues that the Court should take a step back and recognize the overarching problems with administrative common law: its lack of connection to public deliberation; its heightened separation of powers and public accountability concerns; and its lack of foresight about the practical implications of common law doctrine. In Mortgage Bankers, the Court should have taken the opportunity to admonish the lower courts to focus their interpretation of the APA on the public deliberation inherent in the Act itself and to avoid creating rules of administrative common law that exceed the boundaries of the APA. Instead, the Court implicitly reaffirmed that it takes a functional approach to interpreting the APA; it addressed on the merits a deference doctrine that may not comport with the APA without even acknowledging that tension; and it invited the lower courts to continue to use administrative common law as a sort of constitutional avoidance doctrine unmoored from the public deliberation inherent in the APA itself.
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