Superstatute Theory and Administrative Common Law

Abstract

This article employs William Eskridge and John Ferejohn’s theory of superstatutes as a tool to argue that administrative common law that contradicts or ignores the Administrative Procedure Act is illegitimate. Eskridge and Ferejohn conceive of statutes that emerge from a lengthy, public debate and take on great normative weight over time as “superstatutes.” Superstatute theory highlights the deficiency in deliberation about the meaning of the APA. The APA bears all the hallmarks of a superstatute. Unlike the typical federal superstatute, however, the APA is not administered by a single agency. Thus, to respect and encourage the civic-republican style of deliberation that Eskridge and Ferejohn espouse, courts must adhere more closely to the compromises encoded in the statute’s text, paying particular attention to the context and history of each individual provision. Courts should hesitate before moving too far towards the boundaries of the text’s possible meaning. Venturing beyond those boundaries altogether is even more troubling. In the absence of an agency that spurs public deliberation about the meaning of the APA, administrative common law that contradicts or ignores the APA should be presumed to be illegitimate.