(University of Oregon School of Law, 2011) Kovacs, Kathryn E.
This Article examines the courts’ application of an extraordinary
level of deference to the military in APA (Administrative Procedure
Act of 1946) cases, even though Congress
made a deliberate decision to subject the military to the same standard
of review as other federal agencies under the APA. For all federal
agency actions that are reviewable under the APA, Congress
established a single standard of review. The
APA’s history shows that the decision to subject all agencies to the
same level of judicial inquiry was deliberate. Yet, courts continue to
apply different standards of review to different agencies. The military
continues to enjoy “super-deference,” even for actions that are
reviewed under the APA. This Article explains why that is a problem
and why there is no satisfactory explanation for that distinction.
