THE FEDERAL ADMINISTRATIVE PROCEDURE ACT
FOSTER H. SHERWOOD
University of California (Los Angeles)
The American Political Science Review,
Vol. 41, No. 2 (Apr., 1947), pp. 271-281 (article consists of 11 pages)
For full text to article visit http://www.jstor.org/pss/1950710
signature of the new Administrative Procedure Act.1 completed the second or legislative phase of the reform of
administrative procedure which began with the introduction and passage
of the ill-fated Walter-Logan bill in 1939—40. The investigatory phase
which preceded it had its beginning in the reluctant recognition
accorded administrative law as a separate discipline at about the turn
of the century. The refusal to recognize the existence of administrative
law gave way before a volume of literature on the subject, and became
transformed into a criticism of the administrative process itself.2 The movement for reform of which the act of 1940 was the culmination has
come largely in answer to these criticisms. Ignoring differences in
phraseology and attacks on specific agencies, most critics appear to
agree on the following arguments:3
(1) The administrative process is essentially dangerous in that it ignores the traditional American theory of the separation of powers, a principal protection against tyranny and dictatorship in the United Slates. This argument may appear in several forms. Sometimes it is said that administrative law is to be deplored because it is typical of alien countries which are not as advanced politically as we. In the hands of the American Bar Association, this argument is used to point up dangers inherent in any system that has a tendency to limit judicial review. And sometimes the allegation is merely that the administrative process is a violation of the separation theory, leaving the evils of such a violation to implication. Although it is not proposed here to attempt to refute or qualify these arguments, it is clear that the critics’ point is based upon a rather strict and complete separation of powers, a somewhat doctrinaire understanding.4
(2) The administrative process is frequently unfair since it permits the functions of prosecutor and judge to be discharged by the same individual
1- Pub. Law 404, Ch.
324, 79th Cong., 2nd sess., approved June 11, 1946.
2- Cf. relix Frankfurter, “The Task of Administrative Law,” Univ. of Pa. Law Rev., Vol. 75, p. 614 (1927).
3- The volume of such criticism is almost unlimited. But see, as leading examples,
James M. Beck, Our Wanderiand of Bureaucracy (New York, 1932); Carleton K.
Allen, Bureaucracy Triumphant (London, 1931); Amer. Bar Assoc. Reports, LVII,
407; LIX, 539; LX, 136; LXI, 723; LXII, 789; LXIII, 331; LXIV, 574; LXV, 215;
LXVI, 439; LXVII, 226; LXVIII, 249; LXIX, 271.
4- Cf. Charles G. Haines, “The Adaptation of Administrative Law and Procedure to Constitutions Theories and Principles,” in this Revieww, Vol. 34, p. 12 (1940); Jerome Frank, If Men Were Angels (New York, 1942), Chaps. 13—15.
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