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Administrative Procedure Act

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The Administrative Procedure Act (APA) is a federal law passed in 1946 establishing uniform procedures for federal agencies to propose and issue regulations, a process known as rulemaking. The APA also addresses policy statements and licenses issued by agencies and provides for judicial review of agency adjudications and other final decisions.[1][2][3] The APA is a foundational pillar of federal-level administrative law, and has been called the "statutory constitution of administrative government" by one legal scholar.[4]

Most states have enacted similar legislation, modeled on the federal APA, establishing procedures for state-level administrative agencies.[1]


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  • Click here for background information on the APA.
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  • Click here for a summary of the provisions involving the APA.
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  • Click here for a discussion of major legal arguments and concerns about the APA.
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  • Click here for noteworthy events involving the APA.
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Background

Prior to the APA, there were no federal laws governing the general conduct of administrative agencies.[5] During the first three and a half decades of the 20th century, new federal agencies tasked with regulating industry and the economy and administering a variety of programs were created, a trend that accelerated in the 1930s with the New Deal under President Franklin D. Roosevelt.

Responding to concerns about the power of the agencies created under the New Deal, President Roosevelt formed a presidential committee in 1936 to study the federal administrative and regulatory process. The President's Committee on Administrative Management issued a report criticizing what the committee understood as a lack of oversight and coordination among the various agencies.[5] In 1939, President Roosevelt formed the Attorney General's Committee on Administrative Procedure, which reviewed criticisms of federal administrative procedures and issued nearly 500 pages of recommendations in 1941. An early version of the APA was then drafted based on the committee's report, but America's participation in World War II delayed the legislation's consideration and passage until the end of the war. The bill was reintroduced, revised, and enacted into law by Congress and President Harry Truman in 1946.[5]

Below is a partial list of subsequent laws that amended provisions of the Administrative Procedure Act:[5]

Provisions of the Administrative Procedure Act

Rulemaking

The APA established two rulemaking processes for agencies: informal rulemaking (also known as notice-and-comment rulemaking) and formal rulemaking. Some statutes may require agencies to use a hybrid form of rulemaking that combines elements of the informal and formal processes.[2]

Informal rulemaking

Informal rulemaking, the minimum procedural requirement for most agency rules, requires agencies to take the following steps when issuing a rule:[2][3]

  • Publish a notice of proposed rulemaking in the Federal Register
    • Include the rule's substance, the proposed effective date, and the legal authority under which the agency is proposing the rule
  • Provide a comment period, usually between 30 and 60 days, for the public and interested parties to submit comments and recommendations
  • Publish a revised final rule in the Federal Register, at least 30 days before the rule is scheduled to take effect

Formal rulemaking

The formal rulemaking process defined by the APA requires an agency to conduct a recorded hearing with procedures similar to those used in a court of law. These proceedings are usually overseen by an administrative law judge. The process is used in cases in which an agency is required by statute to issue rules after a recorded hearing or, according to the Electronic Privacy Information Center, "in rulemakings that involve adjudicative facts, or facts specific to the rights of an individual."[1][2]

Exemptions

According to the Office of Information and Regulatory Affairs (OIRA), the following types of rules are exempted from the proposed rule phase of the rulemaking process under the Administrative Procedure Act:[6]

“
  • Rules concerning military or foreign affairs functions
  • Rules concerning agency management or personnel
  • Rules concerning public property, loans, grants, benefits, or contracts
  • Interpretive rules
  • General statements of policy
  • Rules of agency organization, procedure, or practice
  • Nonsignificant rules for which the agency determines that public input is not warranted
  • Rules published on an emergency basis[6][7]
 ”

Adjudication

Adjudication is the process used by an administrative agency to make decisions about how the programs and regulations it oversees apply to specific parties in a specific case. The adjudication process usually involves an administrative hearing, which is similar to a judicial proceeding but overseen by an administrative law judge, administrative judge, hearing officer, or board, rather than a judge or justice.[1]

As with rulemaking, there are both formal and informal types of adjudication. The APA only covers formal adjudications, which are expressly required by law to be held "on the record after opportunity for an agency hearing." The law does not cover informal adjudications, meaning that an agency may adopt its own procedures for such proceedings. Under the APA, as with formal rulemakings, formal adjudications are presided over by an administrative law judge. Individuals subject to a formal adjudication must be notified and informed of the details of the hearing.[1][2][5]

Licensing

An agency that issues and oversees licenses or permits that are expressly required by law must follow the same procedures established for formal rulemaking and adjudication when granting or revoking such a license.[2][3] According to the Electronic Privacy Information Center:

“ An agency cannot revoke a license while an application for a new license remains pending. Further, licenses cannot be revoked unless the agency gives notice as to what action has provided cause for the revocation and has allowed the licensee an opportunity to correct that action.[2][7] ”

For all other licenses, internal agency rules govern the application process.[2]

Judicial review

Under the APA, final agency decisions (such as those made during rulemaking or adjudication) are subject to judicial review, usually with a six-year statute of limitations.[2][3] The APA provides for judicial review for people and parties "adversely affected or aggrieved by agency action within the meaning of a relevant statute" or suffering "legal wrong because of agency action."[2]

The APA establishes two standards of judicial review:[1][2][8]

  • Substantial evidence
    • Substantial evidence is required in cases involving decisions made during formal rulemaking or formal adjudication.
    • Courts must uphold agency decisions that are "reasonable, or the record contains such evidence as a reasonable mind might accept as adequate to support a conclusion."
  • Arbitrary-or-capricious test
    • Courts reviewing agency regulations are instructed to overturn actions they find to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
    • This test is most often used when reviewing the factual basis of a rulemaking, especially for informal rulemakings.

According to the Regulatory Group and the Center for Effective Government, in practice, these two tests are applied in very similar ways.[1][8]

Theory and practice

Separation of powers

See also: Rulemaking, adjudication, and Arguments related to the Administrative Procedure Act

The APA codified rulemaking and adjudication procedures within executive agencies. Thus, agencies have the authority to both issue binding regulations and settle any disputes that arise from affected parties regarding agency rules. While some scholars have supported the procedures outlined in the APA, others have questioned the consolidation of both rulemaking and adjudicatory functions within a single agency on the grounds that the structure violates the separation of powers outlined in the U.S. Constitution. Supreme Court at the time of the APA's passage claimed that the legislation established safeguards to ensure that the investigative, prosecutorial, and judicial functions carried out through agency adjudication remained separate and allowed for independent rulings by administrative law judges. Administrative law scholar Bernard Schwartz summarized the views of the Supreme Court at the time in a 1996 article for the Tulsa Law Review:[9]

“ According to the Supreme Court, a 'fundamental... purpose [of the APA was] to curtail and change the practice of embodying in one person or agency the duties of prosecutor and judge .... [T]he safeguards it did set up were intended to ameliorate the evils from the commingling of functions.' The APA provisions on the matter 'did not go so far as to require a complete separation of investigating and prosecuting functions from adjudicating functions.' Instead, as Justice Brennan points out, 'That statute embodies the theory of internal separation, leaving the functions with the agency but providing safeguards to assure their insulation from one another and to further the independence of personnel engaged in judging.'[9][7] ”

Evan Bernick, a fellow at the Georgetown Center for the Constitution, questioned the constitutionality of the combination of functions within a single agency under the APA's framework. He described what he considers to be the conflicting combination of agency functions in his 2017 review of Adrian Vermeule's Law's Abnegation for The Federalist Society:[10]

“ The APA provides for some separation of rulemaking, prosecution, and adjudication, some means through which regulated industries can challenge administrative decisions, and some judicial review. But it accepts what Vermeule’s frequent co-author Cass Sunstein has described as the 'enduring legacy of the [New Deal] period': '[the] insulated administrator, immersed in a particular area of expertise, equipped with broad discretion, and expected to carry out a set of traditionally separated functions.'[10][7] ”

Judicial review

See also: Deference

The APA's judicial review provisions aim to provide a mechanism for the review of agency decisions that resulted in adverse effects or legal wrongs. However, scholars have observed that deference doctrines, such as Chevron deference, that compel the judiciary to defer to agency interpretations of statutes and regulations present concerns for the separation of powers. Ohio State University law professor Christopher Walker described the implications of deference doctrines for the judicial review of agency actions in a 2017 article for the Administrative Law Review:[11]

“ Unlike the intra-branch relationship between appellate and trial courts, the relationship between courts and agencies implicates separation-of-powers concerns. For instance, 'The presumption that the reviewing court has superior competence to answer questions of law is rebutted by the fact that Congress often delegates law-elaboration authority first and foremost to the agency.' Administrative law’s appellate review model has thus evolved beyond the most natural reading of the APA’s text to incorporate a number of agency deference doctrines that reflect these separation-of-powers values.'[11][7] ”

Walker further contended that certain common law practices, including the deference doctrines, have subverted the judicial review procedures put forth in the APA:[11]

“ Administrative common law in judicial review has not been limited to judicial deference to agency legal interpretations. As John Duffy noted, exhaustion of administrative remedies and ripeness are two other areas historically rich in administrative common law.40 Nicholas Bagley has identified the presumption of reviewability as another. We also see it at play with respect to 'hard look' review and judicial remedies in administrative law, such as the Chenery principle and remand without vacatur. Similarly, Kathryn Kovacs has identified a number of other administrative common law doctrines that arguably contravene the APA’s plain text.[11][7] ”

In his 2017 review, Bernick argued that judicial deference to agencies has resulted in the circumvention of hard-look review, the standard used by the judiciary to determine agency actions that are considered to be "arbitrary, capricious, or not in accordance with law." However, he quoted administrative law scholar and former OIRA head Cass Sunstein to argue that hard-look review, though expensive, continues to serve an important purpose in ensuring agency accountability under the APA:[10]

“ And yet there is ample reason to believe that the benefits of hard-look review outweigh the costs. As Sunstein observed several decades ago, '[t]he requirement of detailed explanation has been a powerful impediment to arbitrary or improperly motivated agency decisions,' it and addresses lingering concerns about the 'uneasy constitutional position of the administrative agency” by ensuring that agencies will be held accountable for their decisions. It provides a framework for ensuring that agency officials comply with the same fiduciary duties that the Constitution imposes on all government actors. It thereby promotes the actual and perceived legitimacy of administrative power, as the APA was designed to do.'Cite error: Invalid <ref> tag; invalid names, e.g. too many[7] ”

Regulatory review

See also: Regulatory review

The APA does not include procedures for the executive review of agency regulations, a process known as regulatory review. The absence of explicit regulatory review provisions has led nearly every presidential administration since Jimmy Carter to issue an executive order aimed at implementing procedures for regulatory review and retrospective regulatory review. Walker shed light on the APA's silence on regulatory review in his 2017 article:[11]

“ There has been a growing call in recent years—with bipartisan support—to encourage federal agencies to systematically review existing rules and revise or withdraw old rules when appropriate. For instance, in 2011 President Obama’s 'regulatory czar' Cass Sunstein issued a memorandum that encouraged

agencies to engage in such retrospective review. Similarly, the Trump Administration’s Executive Order on Reducing Regulation and Controlling Regulatory Costs reinforces the importance of retrospective review by instructing agencies that 'for every one new regulation issued, at least two prior regulations be identified for elimination.' ACUS, moreover, recently conducted an extensive study of retrospective review and issued recommendations 'intended to provide a framework for cultivating a "culture of retrospective review" within regulatory agencies.'

Despite broad consensus on the importance of retrospective review, the APA does not address it.[11][7]

”

Administrative law judges

See also: Administrative law judge

The APA established hearing officers, known as administrative law judges (ALJ), to hear evidence and issue decisions in agency disputes. Scholars, including Bernard Schwartz, have criticized the APA for effectively establishing a separate judiciary within administrative agencies. Schwartz described the decisional conflicts presented by ALJs in his 1996 paper:[9]

“ The APA turns around 'the one who decides must hear' principle by vesting the one who hears with the power to decide. The ALJs - the administrative

judiciary set up under the APA - have not only been given the judicial title; they have also been vested with most of the decision-making power of trial judges. The APA empowers the ALJ to issue an initial decision that becomes the decision of the agency unless appealed. It is true that the APA gives the agency authority to require (in specific cases or by general rule) that the record be certified directly to it for decision. In such a case, the agency retains all decisionmaking power, with the ALJ relegated to authority only to recommend a decision. In virtually all federal agencies, however, the power to make an initial decision has been delegated to the ALL The result, in the vast majority of federal agency cases, is to have an initial decision by the judge who presided at the hearing.[9][7]

”

Rulemaking

See also: Rulemaking

The APA established rulemaking procedures for administrative agencies to craft and promulgate regulations. The informal rulemaking process incorporates a comment period for members of the public and affected parties to submit feedback on proposed regulations. Scholars have criticized the APA for failing to establish a minimum length of time for comment periods, though executive orders have established general minimum standards. In his 2017 review, Bernick argued that "The APA sets no minimum (or maximum) time for the public comment period, yet it is crucial that interested individuals have sufficient time to respond to a proposed rule, especially for a “major” rule."[11] Moreover, as George Washington University law professor David Fontana observed in a 2005 article, interest groups have generally made up the bulk of participation in comment periods while individual citizen engagement remains low:[11][12]

“ All of these procedural requirements on agencies have led many to agree with Kenneth Culp Davis’s statement that rulemaking is 'one of the greatest

inventions of modern government.' Davis is at least partly right, but all of the empirical research on public participation in agency rulemaking demonstrates that participation is minimal, of low quality, and dominated by powerful interests. Cornelius Kerwin, for instance, studied all rules published in the Federal Register between December 1990 and June 1991, leading to a total of 1985 rules examined. Kerwin found that a bare majority of these rules triggered any sort of participation at all. When there was participation, the majority of participation was by a series of repeat player interest groups."[12][7]

”

Midnight rulemaking

See also: Congressional Review Act and Midnight rulemaking

The Administrative Conference of the United States (ACUS), an independent federal agency tasked with developing recommendations to improve federal administrative processes, and administrative law scholars have observed that the APA is silent on the question of "midnight rulemaking"—the issuance of a large number of agency regulations during the final days of a presidential administration. ACUS proposed that incoming presidential administrations should be able to delay the effective date of midnight regulations promulgated by the previous administration, according to Walker:[11]

“ Increased regulatory activity near the end of a presidential administration poses unique problems to the modern administrative state. This problem

has been coined 'midnight regulation,' alluding 'to the Cinderella story in which the magic wears off at the stroke of midnight.' The APA presently does not address this newer phenomenon. ACUS recently studied the issue at length and recommended that an incoming presidential administration should have statutory authority to delay the effective date of such midnight rules.[11][7]

”

Noteworthy events

Supreme Court ruling on APA 'statute of limitations' (2024)

On July 1, 2024, the U.S. Supreme Court issued its ruling in the case of Corner Post, Inc. v. Board of Governors of the Federal Reserve System. The Supreme Court held by a vote of 6-3 that the statute of limitations for filing an APA claim begins accruing when the plaintiff is injured by a final agency action, not when the action is promulgated. Under the APA, injured parties can file a claim challenging an agency action within six years. The court’s decision determined that the statute of limitations begins accruing when the plaintiff is injured by the action, not when the action is promulgated.

See also

External links

Footnotes

  1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 The Regulatory Group, "Regulatory Glossary," accessed August 4, 2017
  2. ↑ 2.00 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 Electronic Privacy Information Center, "The Administrative Procedure Act (APA)," accessed August 14, 2017
  3. ↑ 3.0 3.1 3.2 3.3 Environmental Protection Agency, "Summary of the Administrative Procedure Act," accessed August 14, 2017
  4. ↑ Poverty & Race Research Action Council, "The Administrative Procedure Act: An Introduction," by Prof. Gillian Metzger
  5. ↑ 5.0 5.1 5.2 5.3 5.4 Legal Dictionary, "Administrative Procedure Act of 1946," accessed August 14, 2017
  6. ↑ 6.0 6.1 Office of Information and Regulatory Affairs, "Reg Map: Step Three," accessed July 27, 2017
  7. ↑ 7.00 7.01 7.02 7.03 7.04 7.05 7.06 7.07 7.08 7.09 7.10 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  8. ↑ 8.0 8.1 Center for Effective Government, "Arbitrary-or-Capricious Test," accessed August 15, 2017
  9. ↑ 9.0 9.1 9.2 9.3 Tulsa Law Review, "Adjudication and the Administrative Procedure Act," Winter 1996
  10. ↑ 10.0 10.1 10.2 The Federalist Society Review, "Lions Under the Bureaucracy: Defending Judicial Deference to the Administrative State," February 15, 2017
  11. ↑ 11.0 11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9 Administrative Law Review, "MODERNIZING THE ADMINISTRATIVE PROCEDURE ACT," accessed April 4, 2018
  12. ↑ 12.0 12.1 George Washington Law Faculty Publications & Other Works, "Reforming the Administrative Procedure Act: Democracy Index Rulemaking," 2005
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