Arguments related to the Administrative Procedure Act
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This page examines the main arguments that have been advanced regarding the Administrative Procedure Act (APA), the statute governing federal administrative agency procedures (all 50 states have enacted similar legislation establishing procedures for administrative agencies in their respective states). These arguments generally concern the effectiveness of the APA as a governing statute and the exercise of formal and informal APA procedures.
This page features the following arguments concerning the APA:
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Informal procedures are insufficient to govern agency action
- Claim: Informal rulemaking fuels the growth of the administrative state
- Claim: Informal rulemaking lacks sufficient procedural protections
2. Argument: Informal procedures are sufficient to govern agency action
- Claim: The U.S. Supreme Court supports the increased use of informal adjudication
- Claim: Administrative Conference of the United States supports increased use of informal rulemaking
3. Argument: The Administrative Procedure Act is out of date and should be modernized
- Claim: The APA does not reflect current agency practices
- Claim: Calls for APA reform date to the mid-twentieth century
5. Argument: Agency theory and practice should align
- Claim: Agencies sidestep the rulemaking process by setting policy through adjudication
- Claim: Agencies abuse guidance to issue binding regulations
Background
Administrative Procedure Act
- See also: Administrative Procedure Act
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] Prior to the APA, there were no federal laws governing the general conduct of administrative agencies.[4]
The 50 states also have APAs that govern administrative processes at the state level. Click here for more information about state-level APAs.
Formal and informal procedures
- See also: Rulemaking
Agencies function according to two processes: rulemaking and adjudication. The Administrative Procedure Act (APA) stipulates procedures for rulemaking and adjudication. While formal procedures require in-person hearings on the record, informal procedures are not clearly defined by the APA and can take different forms.
The U.S. Supreme Court's 1973 decision in United States v. Florida East Coast Railway held that formal rulemaking is only required when a governing statute calls for a hearing "on the record." Since the court's decision, agencies have increased the use of informal rulemaking and adjudication procedures. Applications of formal rulemaking and adjudication, on the other hand, have significantly declined, leading Justice Clarence Thomas to describe formal rulemaking as the Yeti of administrative law.[5]
Argument: Informal procedures are insufficient to govern agency action
The ease of informal rulemaking, according to this argument, has contributed to the growth of the administrative state. Moreover, this argument contends that informal rulemaking lacks sufficient procedural protections for citizens. Supporters of this argument generally support a revival of formal rulemaking procedures.
Claim: Informal rulemaking fuels the growth of the administrative state
The rise in informal rulemaking, according to this claim, has facilitated regulatory growth by minimizing rulemaking requirements.
- Deputy Attorney General Jeffrey Rosen discussed the rise in informal rulemaking during his keynote remarks before the U.S. Department of Justice's (DOJ) December 2019 summit, Modernizing the Administrative Procedure Act. Rosen claimed that the rise in informal rulemaking has contributed to the growth of the administrative state.
- "Today, of course, the opposite is true: informal rulemaking is where the action is. Informal rulemaking’s day came with the major health, welfare, and environmental statutes of the 1960s and 1970s, and regulation has never been the same. Informal rulemaking has been the fuel of the administrative state’s explosive growth."[5]
Claim: Informal rulemaking lacks sufficient procedural protections
This claim suggests that informal procedures lack the necessary procedural protections for citizens. Informal procedures, according to this claim, do not provide confirmation that agencies have considered public comments and do not ensure that agencies have disclosed the rationale behind their decisionmaking.
- Administrative law scholar Aaron Nielson described this claim in his law review article "In Defense of Formal Rulemaking." Nielson claimed that all three branches of government have expressed concern about the procedural protections available during informal rulemaking.
- "Unfortunately, however, informal rulemaking, while useful and necessary, is far from perfect. Although the public receives some procedural protections during this informal process, those protections are limited. Citizens cannot know whether the agency will pay close attention to the written comments they file, nor whether the rationale given by the agency reflects the real reasons for the agency's decision. With informal rulemaking, moreover, agencies can disguise policy determination as "technical" judgments. Informal rulemaking, in other words, is often a black box. Because informal rulemaking is imperfect, Congress has repeatedly pushed procedural reform, presidents of both parties have increased procedural requirements, and courts have done the same. All three branches of government have expressed concern that informal rulemaking sometimes does not provide the procedural protections that best serve the public."[6]
Argument: Informal procedures are sufficient to govern agency action
Supporters of informal procedures, including informal rulemaking and informal adjudication, argue that informal processes are sufficient to govern agency action because informal processes have received support from the U.S. Supreme Court and other institutions.
Claim: The U.S. Supreme Court supports the increased use of informal adjudication
The U.S. Supreme Court, according to this claim, has issued opinions that endorse the increased use of informal adjudication.
- Paul Verkuil, former chairman of the Administrative Conference of the United States, in a 1992 presentation at a University of California, Los Angeles, Law School symposium, claimed that U.S. Supreme Court decisions in the 1990s have allowed agencies to increase the use of informal adjudication—an unconstrained model of adjudication not bound by the formal adjudication requirements of the Administrative Procedure Act (APA):
- "It is fair to say that by the 1990s the Court has moved towards greater decisional freedom under the Due Process Clause. From its earlier position in Wong Yang Sung of equating due process to formal APA hearings, the Court has evolved from the Goldberg requirement of specifying procedures for due process to a world that can readily accept an informal process of infinite variety. In this environment the decider need not be APA-qualified, nor must the APA formal hearing process serve as a baseline. This informal process, which is not defined by the APA, remains an amorphous competing model."[7]
Claim: Administrative Conference of the United States supports increased use of informal rulemaking
The Administrative Conference of the United States (ACUS), according to this claim, has historically supported the increased use of formal rulemaking.
- Nielson observed that the Administrative Conference of the United States has stated that it supports the increased use of informal rulemaking as a matter of agency discretion.
- "Of particular relevance, the Conference in 1972—then newly headed by Antonin Scalia—stressed that it 'emphatically believes that trial-type procedures should never be required for rulemaking except to resolve issues of specific fact,' and urged that 'Congress should never require trial-type procedures for resolving questions of policy or of broad or general fact.' Although acknowledging that formal rulemaking can be valuable—if there is a 'special reason' for it—the Conference recommended that whether to use formal procedures should be within an agency’s discretion. In 1976, the Conference further explained that formal procedures may be appropriate where, for example, the issue is scientifically 'complex' or the costs are 'significant.'"[6]
Argument: The Administrative Procedure Act is out of date and should be modernized
The Administrative Procedure Act (APA), according to this argument, is out of date and must be modernized in order to sufficiently govern agency action.
Claim: The APA does not reflect current agency practices
Although formal processes have declined since the 1970s, the U.S. Supreme Court has called for additional requirements for informal processes that, according to this claim, have distorted the original intention of the APA. This claim suggests that the APA is in need of an update to align its standards with current practices.
- Administrative law scholar Aaron Nielson discussed this claim during the U.S. Department of Justice's (DOJ) 2019 summit, "Modernizing the Administrative Procedure Act." Nielson claimed that current agency practices do not align with the APA's original intent.
- "I have two concluding thoughts. One is, it shows that the APA is due for an update. It is showing its age. The way that we do things now does not very well map onto how it was enacted then."[5]
Claim: Calls for APA reform date to the mid-twentieth century
This claim contends that calls for APA reform date back to commissions and panels from the mid-twentieth century. These calls for reform have highlighted the need to modernize the APA's procedures to maximize public participation, efficiency, accountability, and transparency.
- Rosen claimed that the call for APA reform dates back to the Second Hoover Commission in 1955. He further claims that all presidential administrations since Ronald Reagan have recognized the APA's insufficiency in governing agency action.
- "Ever since the APA’s enactment, policymakers have recognized that we still need a better regulatory process. The procedures introduced by the APA established rule-of-law principles as a check on administrative power, giving parties some measure of due process when confronted with agency action. Undoubtedly, this was an important achievement. But even shortly after the APA’s enactment, the need for further reform was clear. As early as the recommendations of the Second Hoover Commission in 1955, there has been a steady flow of calls for additional regulatory improvements, such as the Ash Council Report of 1971 and the American Bar Association’s 1979 report Federal Regulation: Roads to Reform. Such calls for reform have recognized that better procedures were needed not only to make regulation more fair, but to address other important values. As President Reagan observed in 1981, in his landmark Executive Order 12,291, the APA left unresolved the need to 'reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and ensure well-reasoned regulations.' Each succeeding administration has likewise recognized that the APA’s procedures alone are insufficient to promote efficiency, accountability, transparency, and public participation."[5]
Argument: The Administrative Procedure Act should be resuscitated and agencies should revive formal procedures
Returning to the formal procedures of the Administrative Procedure Act (APA), according to this argument, would increase the value and accountability of the rulemaking process.
Claim: Formal rulemaking provides value during technical deliberations
This claim suggests that formal rulemaking, though in decline, incorporates processes that increase the value of agency deliberations on matters of technical expertise.
- During the DOJ's summit, "Modernizing the Administrative Procedure Act," Nielson claimed that the Administrative Conference of the United States has recognized the value of formal rulemaking procedures during technical deliberations.
- "[T]he Administrative Conference in the 1970s did not think formal rulemaking should be required but recognized in a couple of recommendations the value of it, especially for highly technical matters. I think Nick’s point is very well-taken, that maybe we would want science advisory committees or something like that, but there is a lot of value in having a good cross-examination closed record, where you have the expert on the stand and you say, “This is your analysis. Have you thought about this? Have you thought about this? Have you thought about this,” and go down a checklist. Instead of having a hundred thousand pages in the record, you have a nice transcript page that says this is the key issue. Have they thought about it? I think it makes judicial review easier. I think it makes the issues more fleshed out."[5]
Argument: Agency theory and practice should align
Agency theory and practice with respect to rulemaking and adjudication do not always align. This argument states that agencies should function in a manner that aligns procedural theory and practice.
Claim: Agencies sidestep the rulemaking process by setting policy through adjudication
According to the Administrative Conference of the United States, some agencies set policy through adjudication more often than rulemaking. This claim suggests that agencies should align theory and practice by setting policy through rulemaking rather than adjudication.
- In a 2000 article for Washingon and Lee Law Review, law professor William Araiza questioned whether setting policy through adjudication was appropriate when agencies have the explicit authority to establish policy through rulemaking:[8][9]
- "Clearly, when a court interprets tort law, or the Clean Air Act, or the Due Process Clause of the Constitution, it does not engage in a mechanical process of plugging a pre-existing meaning into a given set of facts, with no consideration of policy implications. But the judicial process still is constrained by the pre-existing law: prior precedent in the common-law context, the text and other interpretive clues in the statutory context, and a combination of those sources (and other limiting factors) in the constitutional context! By contrast, when agencies adjudicate they enjoy more or less free rein to adopt what they consider to be the best rule (as long, of course, as that rule is consistent with the statute?).
- "The existence of this policy-making power under the rubric of 'adjudication' has caused concern among courts. In particular, courts have wondered whether policy-making is an appropriate function for an agency adjudicator, given the traditional conception of adjudication as the application of existing law to a dispute between two parties. Judicial concern increases when courts realize that most agencies also have the power to promulgate rules, which, given their resemblance to legislation, intuitively seem the more appropriate vehicle for policy-making. If it is questionable whether explicit and sole reliance on policy concerns can justify adjudication, and if another agency procedure can effectively set policy, then why allow agencies to base adjudicative results solely on policy concerns?"[9]
- Law professor William Mayton put forth a similar argument in a 1980 article for the Duke Law Journal:[10]
- "In addition to prescribing procedures for agency formulation of law and policy, Congress also imposed codification and publication requirements in order to make the substance of agency-developed law and policy more accessible and to create a greater consistency in agency application of this law and policy. The ad hoc developmentof standards by adjudication is inconsistent with these purposes. Thus, on this additional basis, adjudication is an improper substitute for rulemaking."[10]
- Contrary to Araiza and Mayton's concerns about policy formation through adjudication, the United States Supreme Court allowed for the practice in its 1947 ruling for SEC v. Chenery Corporation. Araiza cited the following statement in Chenery:
- "Nevertheless, fifty years ago in SEC v. Chenery Corporation, the Supreme Court refused to scrutinize closely an agency's decision to impose a new policy-based rule through the vehicle of an adjudicatory proceeding. The Court's statement was clear: 'the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.' Chenery's statement remains definitive today."[9]
Claim: Agencies abuse guidance to issue binding regulations
This claim recommends that agencies align theory and practice by only issuing binding regulations through the rulemaking process rather than through guidance documents.
- During the DOJ's summit, "Modernizing the Administrative Procedure Act," Nielson claimed that agencies use guidance as a form of "backdoor rulemaking" that allows them to issue binding rules while circumventing the rulemaking process.
- "But, unfortunately, what I’ve described — and I think it’s not with any bad intention on the part of the many great people who work at federal agencies — is more theory than reality. What we see more and more, as I suggested with my blizzard analogy, is documents that stream out of agencies every day that do impose binding legal standards and substantive norms, yet are not adopted through these beneficial notice-and-comment procedures. What we see more and more is what I call backdoor rulemaking, and that’s unfortunate because it is lawmaking without the transparency and the public input that are required by the APA."[5]
See also
External links
Footnotes
- ↑ The Regulatory Group, "Regulatory Glossary," accessed August 4, 2017
- ↑ Electronic Privacy Information Center, "The Administrative Procedure Act (APA)," accessed August 14, 2017
- ↑ Environmental Protection Agency, "Summary of the Administrative Procedure Act," accessed August 14, 2017
- ↑ Legal Dictionary, "Administrative Procedure Act of 1946," accessed August 14, 2017
- ↑ 5.0 5.1 5.2 5.3 5.4 5.5 U.S. Department of Justice, "Modernizing the Administrative Procedure Act," December 2019
- ↑ 6.0 6.1 Ohio State Law Journal, "In Defense of Formal Rulemaking," accessed December 15, 2020
- ↑ College of William & Mary Law School Scholarship Repository, "Reflections upon the Federal Administrative Judiciary," 1992
- ↑ Cite error: Invalid
<ref>tag; no text was provided for refs namedsource - ↑ 9.0 9.1 9.2 Washington and Lee Law Review, "Agency Adjudication, the Importance of Facts, and the Limitations of Labels," March 1, 2000
- ↑ 10.0 10.1 Duke Law Journal, "The Legislative Resolution of the Rulemaking Versus Adjudication Problem in Agency Lawmaking," 1980
