Welcome to the third installment of Ballotpedia’s Learning Journey on the Administrative Procedure Act (APA)!
Today we review key arguments from administrative law scholars about the APA.
Argument: The APA is out of date and needs to be modernized
The APA, according to this argument, is out of date and must be modernized in order to sufficiently govern agency action. 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 argument, 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. Moreover, this argument 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.
Argument: The APA needs to be resuscitated and agencies should return to formal procedures
This argument contends that the rise in informal procedures has allowed agencies to operate with little oversight by the APA. A return to the formal rulemaking and adjudication procedures outlined in the APA, according to this argument, would increase agency oversight and strengthen agency procedures by allowing for the cross-examination of experts on the record.
Pop Quiz!
True or False?
Formal adjudication makes up 90 percent of agency adjudication proceedings.
True
False
Argument: The decline of formal rulemaking under the APA has led to the rise in Informal procedures, which are insufficient to govern agency action
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. 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."
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.
What's Next?
Tomorrow, we wrap up our Learning Journey on the APA.
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