Oregon Law Review : Vol. 90, No. 2, p. 583-642 : Leveling the Deference Playing Field
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.