Welcome to the final installment of Ballotpedia’s Learning Journey on agency dynamics!
Lets review the highlights:
What Do We Mean By "Agency Dynamics?"
Agency dynamics is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Agency dynamics is a term used to refer to the structure and function of administrative agencies.
Agency dynamics is also a key area of disputation among administrative law scholars. While some scholars argue that agency dynamics align with the constitutional framework, others claim that agency dynamics operate in tension with constitutional principles.
Agency Structure
Federal and state governments comprise a host of executive and independent agencies that administer and enforce the law. An executive agency is an agency that is housed under a government’s executive branch. At the federal level, an executive agency is an agency that is housed under the Executive Office of the President or one of the 15 Cabinet departments within the executive branch. Executive agencies may house additional sub-agencies, bureaus, divisions, and commissions.
An independent agency, on the other hand, is an executive agency that operates with some degree of autonomy from the executive branch. At the federal level, these agencies are generally headed by a commission or board made up of five to seven members with protections against at-will removal by the president.
Arguments about Agency Structure
Argument: Agencies operate outside the scope of political control:
This argument contends that Congress' limited agency oversight and the judicial branch's deference to agency decisionmaking have resulted in relative autonomy for agencies.
Argument: Agencies are accountable to the executive and legislative branches:
Though agency actors themselves are not directly elected, according to this argument, their oversight by the political branches holds them accountable.
Argument: Independent agencies are unconstitutionally insulated from control by the elected executive
Cause-removal protections, according to this argument, prevent the executive from overseeing agencies' execution of the law.
Argument: Independent agencies are politically accountable
Independent agencies are politically accountable because their structure is the result of political compromise, according to this argument.
Pop Quiz!
Which of the following procedures put forth in the Administrative Procedure Act (APA) do agencies follow?
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Rulemaking
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Adjudication
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Experimentation
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A and B
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All of the above
The Administrative Procedure Act
Agency functions at the federal level are governed by the Administrative Procedure Act (APA). The APA is a federal law passed in 1946 establishing uniform procedures for agency rulemaking and adjudication.
All 50 states have enacted similar legislation, largely modeled on the federal APA, establishing procedures for administrative agencies in their respective states.
Rulemaking and Adjudication
The APA established two rulemaking processes for agencies: informal rulemaking (also known as notice-and-comment rulemaking) and formal rulemaking. Agency use of formal rulemaking has drastically declined since the U.S. Supreme Court's 1973 decision in United States v. Florida East Coast Railway.
Similarly, the APA established both formal and informal adjudication processes for agencies to settle regulatory disputes. The use of formal adjudication, like formal rulemaking, has declined since 1973 to the point that informal rulemaking now makes up roughly 90 percent of agency adjudications.
Arguments about agency functions
The following arguments summarize key claims in the debate surrounding the constitutional dynamics of agency functions:
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 by minimizing rulemaking requirements. Supporters of this argument generally claim that a revival of formal rulemaking procedures would increase the value of agency deliberations on matters of technical expertise.
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.
Argument: The APA is out of date and needs to be modernized
The APA, according to this argument, is out of date and must be modernized in order to sufficiently govern agency action. This argument suggests that the APA is in need of an update to align its standards with current practices.
Argument: The APA needs to be resuscitated to strengthen agency procedures
A return to the formal rulemaking and adjudication procedures outlined in the APA, according to this argument, would strengthen agency procedures by allowing for the cross-examination of experts on the record.
Thank You!
Thank you for joining us on this Learning Journey! We hope that you will join us on other Learning Journeys to broaden your knowledge about the administrative state.
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