At the Fall Meeting Awards Luncheon, the Section presented its twelfth annual Award for Scholarship for the first time to two works: Professor George B. Shepherd's article, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Northwestern L. Rev. 1557 (1996), and Professor Jessica Korn's book, The Power of Separation: American Constitutionalism and the Myth of the Legislative Veto (Princeton Univ. Press 1996). A committee of legal academics and practicing lawyers considered over one hundred works and engaged in lengthy deliberations before concluding that these two works make outstanding contributions to the field and that it could not rationally support a conclusion that one work is superior to the other.

Professor Korn's book supports her thesis that the debate with respect to the legislative veto ultimately is not important, because Congress has access to myriad other tools through which it exercises effective control over agency decisionmaking. The heart of the book consists of her careful analysis of the many ways in which Congress uses statutorily mandated decisionmaking procedures to force agencies to make substantive decisions preferred by Congress.

Korn begins the book by describing the broad historical and constitutional framework within which the debate over the legislative veto took place. After describing the debate, she engages in meticulous study of three contexts in which the legislative veto was believed to have particularly significant effects: Federal Trade Commission rulemakings; rulemakings involving education policies; and Presidential extensions of Most-Favored-Nation status. In each context, she shows that the presence or absence of legislative veto power had no effect on decisionmaking by the Executive Branch. In each case, Congress was successful in obtaining the results it preferred in other ways.

Korn shows how procedures mandated by the APA and by agencies' organic acts combine with congressional oversight, the appropriations process, and predictable public reactions to statutorily-mandated procedures, to provide Congress with a formidable arsenal of weapons to control the conduct of agencies. She chronicles the many sophisticated ways in which Congress uses these potent weapons as effective instruments of control.

Professor Shepherd's article is a thoroughly documented, comprehensive history of the legislative debates that culminated in the enactment of the Administrative Procedure Act in 1946. Most of the prior accounts of the process of drafting and enacting the APA have focused primarily on the role played by the handful of wise scholars and practitioners who engaged in careful empirical study of the administrative process and then used the findings of their research to draft a statute that was capable of channeling agency discretion effectively in myriad contexts for over half a century. Shepherd acknowledges the critical role played by this group, but he places this part of the process in the broader context of the fifteen year political debates that preceded the entry of this group into the process. Shepherd demonstrates that designation of a small group of knowledgeable experts to draft the statute was an act of desperation taken only after fifteen years of extremely vitriolic debate had produced an impasse that was unacceptable to all participants in the debate.

The political debate about the APA was nasty, partisan, and laden with ideological content. Each side routinely charged that the other was attempting to create either a fascist or a communist form of government. Though the debate focused putatively on procedural and institutional issues, both sides' positions on those issues were motivated almost exclusively by their substantive agendas. One side sought to create a procedural and institutional environment in which government could intervene easily, quickly, and inexpensively in virtually every area of economic or social activity in any way it chose. The other side sought to create a procedural and institutional environment in which virtually all forms of government intervention were prohibitively expensive. Some might say that the debates over regulatory reform fifty years later mirror the original enactment.

Shepherd also shows that the enactment of the APA by unanimous voice votes with no debate is extremely misleading. No member of the House, Senate, or Administration liked the Act. Each acquiesced in its enactment because he could no longer tolerate the status quo. Moreover, the APA could be enacted only because it was loaded with intentional ambiguities that allowed both sides to declare victory by adopting diametrically opposed interpretations of the same ambiguous statutory language.