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Kovacs, Kathryn E. (2010). A History of the Military Authority Exception in the Administrative Procedure Act. Administrative Law Review, 62(3), 673-728. Retrieved from https://doi.org/doi:10.7282/T32R3W1N

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TitleA History of the Military Authority Exception in the Administrative Procedure Act
NameKovacs, Kathryn E. (author), Dean's Office (School of Law-Camden), School of Law-Camden
Date Issued2010
SubjectAdministrative Procedure Act, Military authority
DescriptionThe Administrative Procedure Act of 1946 paves an essential avenue to the courthouse door for plaintiffs challenging military decision making, particularly those alleging that the military has violated individual civil liberties or federal environmental statutes. Yet, the APA does not authorize judicial review of “military authority exercised in the field in time of war.” This article provides a much needed and long overdue legislative historiography of that exemption, fitting it into context with the loss of faith in administrative expertise and fear of totalitarianism that accompanied World War II. The article then examines the provisions in the Articles of War from which the “military authority” exemption apparently was drawn. The final analysis is of the courts’ and commentators’ assumptions about the exemption, foremost the assumption that “in the field” connotes only the locus of combat. The article concludes that, although the “military authority” exemption appears to be quite narrow, Congress’ understanding of its chosen phrasing in 1946 would have been somewhat broader than that of a modern reader, and thus many courts and commentators’ assumptions about the exemption are flawed.
GenreArticle, Non-refereed, Version of Record (VoR), Journal Article
Persistent URLhttps://doi.org/doi:10.7282/T32R3W1N
LanguageEnglish
CollectionKovacs, Kathryn E.
Organization NameRutgers, The State University of New Jersey
RightsCopyright for scholarly resources published in RUcore is retained by the copyright holder. By virtue of its appearance in this open access medium, you are free to use this resource, with proper attribution, in educational and other non-commercial settings. Other uses, such as reproduction or republication, may require the permission of the copyright holder.