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Reform proposals related to public control of the administrative state

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What are the five pillars of the administrative state?

Ballotpedia's five pillars of the administrative state provide a framework for understanding the authority, influence, and actions of administrative agencies, as well as the policies and arguments surrounding them. The five pillars focus on the control of administrative agencies related to the (1) legislative, (2) executive, and (3) judicial branches of government, (4) the public, and (5) other agencies or sub-agencies.

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Public control of agencies is one of five pillars used to understand Ballotpedia's coverage of the administrative state. It focuses on the balance of power between administrative agencies and the public.

Public control is a central concept in the debate over the nature and scope of the administrative state and represents how administrative agencies relate to the people and organizations subject to their rules and regulations. The primary components of the public control pillar are public participation and procedural rights. This includes topics such as individual due process, standing, adjudication and enforcement proceedings, and public participation in the rulemaking process.

This page contains reform proposals related to public control of the administrative state. Ballotpedia has identified four major types of reform categories related to public control:

Adjudication procedures and structure

This category focuses on strengthening the fairness, consistency, and integrity of agency adjudication processes.

Improving adjudicatory procedures

This sub-category includes proposals to enhance procedural safeguards, transparency, and evidentiary standards in agency hearings.

Amend the APA to require evidentiary hearings in agency adjudication

This reform proposal suggests that Congress can strengthen procedural rights in agency adjudication by passing legislation that requires agencies to follow APA procedures when adjudication calls for evidentiary hearings.

  • In his 2017 law review article "Slip Slidin' Away—The Erosion of APA Adjudication," law professor William Funk proposed that Congress could amend the APA to require that agency adjudication that is statutorily mandated to include a hearing must follow the formal adjudication procedures put forth in the APA.
"An alternative to having the Court clarify the existing law would be for Congress to amend the APA in such a way as to make clear, as was its original intention, that whenever an evidentiary hearing is required by a statute, that hearing should be an APA adjudication. In a sense this would be the simplest and cleanest solution. Indeed, given the current Congress’s interest in regulatory reform, this might be an attractive undertaking, especially because it is not, like some other bills under consideration, a subterfuge for shutting down government regulation.”[1]

Expand the use of formal APA adjudication under ALJs

Similar to the proposal above, this proposal seeks to strengthen procedural rights in agency adjudication by requiring agencies to follow APA procedures. Formal adjudication under the APA, according to this proposal, helps to mitigate bias concerns by requiring the use of administrative law judges rather than administrative judges. To learn more about the debate surrounding the use of ALJs and AJs, click here.

  • In his 2016 law review article "Why Bias Challenges to Administrative Adjudication Should Succeed," law professor Kent Barnett suggested that Congress and the president can reduce concerns about partiality in agency adjudication by ensuring that agencies follow APA procedures, which require the use of ALJs rather than AJs.
“Because of the implications of a judicial decision concerning AJ partiality, Congress and the President should act before courts force them to. Doing so not only avoids administrative chaos, but it returns agency adjudication to its intended form under the APA. The very problems that I identified for AJs here are not new. Shortly after the APA's enactment, U.S. Attorney General J. Howard McGrath stated that "[i]f salaries and promotions are subject to agency control, there is always danger that a subtle influence will be exerted upon the examiners to decide in accordance with agency wishes." Guaranteeing that agency adjudication has its constitutional appearance of impartiality - the appearance that Congress intended it to have under the APA - is not too much for Congress and the President to accomplish."[2]
  • The Administrative Conference of the United States (ACUS), an independent federal agency tasked with developing recommendations to improve federal administrative processes, issued a 1992 recommendation titled "The Federal Administrative Judiciary" that aims to mitigate bias concerns in agency adjudication by urging Congress to pass statutes that require the use of ALJs in administrative proceedings.[3]
"The uniform structure established by the APA for on-the-record hearings and for qualifications of presiding officers serves to provide a consistency that helps furnish legitimacy and acceptance of agency adjudication. A rationalized system of determining when ALJs should be used would encourage uniformity not only in procedure, and in the qualifications of the initial decider, but in adjudication of similar interests. The Conference, therefore, recommends that Congress consider the conversion of AJ positions to ALJ positions in certain contexts. While the Conference does not identify specific types of cases for which such conversion should be made, it proposes a series of factors for Congress to consider in making such determinations; these same factors should also apply when Congress creates new programs involving evidentiary hearings."[3]

Follow ACUS best practices for adjudication

This reform proposal encourages agencies to adopt adjudication guidelines endorsed by the Administrative Conference of the United States.

Senate-confirmed officials' involvement in adjudication, statutes related to judicial review of agency rules, and management of constituent services inquiries

The Administrative Conference of the United States (ACUS)—an independent federal agency tasked with recommending procedural improvements for federal regulatory processes—adopted four recommendations during the 81st Plenary Session.[4]

The recommendations, published in the Federal Register on July 9, 2024, put forth what ACUS considers to be best practices for the following processes:[4]

  • "Recommendation 2024-1, Choice of Forum for Judicial Review of Agency Rules. This recommendation provides that, when drafting a statute that provides for judicial review of agency rules, Congress ordinarily should provide that rules promulgated using notice-and-comment procedures are subject to direct review by a court of appeals. The recommendation also identifies common statutory ambiguities that Congress should avoid in drafting new or amending existing statutes that provide for judicial review of agency actions."[4]
  • "Recommendation 2024-2, Individualized Guidance. This recommendation offers practices to promote fairness, accuracy, and efficiency in agency processes for providing written guidance in response to requests for advice from members of the public. Among other topics, it will address processes for members of the public to request guidance from agencies; agency practices for drafting responses to guidance requests, including the personnel involved and mechanisms to ensure accuracy and consistency; the public availability of individualized guidance documents; and the extent to which members of the public can rely on legal interpretations and policy statements made in individualized guidance documents."[4]
  • "Recommendation 2024-3, Senate-Confirmed Officials and Administrative Adjudication. This recommendation examines, as a legal and practical matter, whether, when, how, and how often agency heads and other Senate-confirmed officials participate in the adjudication of cases across a range of federal administrative programs. For agencies that have decided to provide or are considering providing for participation by Senate-confirmed officials in the adjudication of individual cases, the recommendation identifies principles and practicalities that agencies should consider in structuring such participation and provides best practices for developing and communicating relevant policies regarding such participation."[4]
  • "Recommendation 2024-4, Managing Congressional Constituent Service Inquiries. This recommendation identifies best practices for agencies to promote quality, efficiency, and timeliness in their procedures for managing and responding to congressional constituent service inquiries. Among other topics, it addresses the proper scope, content, internal dissemination, and public availability of such procedures; how agencies can use technology to streamline their management and resolution of constituent service inquiries; how agencies should adopt and evaluate constituent service-specific performance goals; and strategies for improving communication with congressional offices and staff."[4]
Precedential decision-making, regulatory enforcement manuals, and settlement agreements

ACUS adopted three recommendations during the 78th Plenary Session in December 2022 aimed at what the organization views as improving “the efficiency, transparency, and fairness of administrative programs.”[5]

The recommendations, published in the Federal Register on January 13, 2023, put forth what ACUS considers to be best practices regarding precedential decision-making in agency adjudication, the use and availability of regulatory enforcement manuals, and public accessibility to settlement agreements made during agency enforcement proceedings:[5]

  • "Recommendation 2022-4, Precedential Decision Making in Agency Adjudication. This recommendation identifies best practices on the use of precedential decisions in agency adjudication. It addresses whether agencies should issue precedential decisions and, if so, according to what criteria; what procedures agencies should follow to designate decisions as precedential and overrule previously designated decisions; and how agencies should communicate precedential decisions internally and publicly. It also recommends that agencies codify their procedures for precedential decision making in their rules of practice."[5]
  • "Recommendation 2022-5, Regulatory Enforcement Manuals. This recommendation identifies best practices for agencies regarding the use and availability of enforcement manuals—that is, documents that provide agency personnel with a single, authoritative resource for enforcement-related statutes, rules, and policies. It recommends that agencies present enforcement manuals in a clear, logical, and comprehensive fashion; periodically review and update them as needed; ensure enforcement personnel can easily access them; and consider making manuals, or portions of manuals, publicly available."[5]
  • "Recommendation 2022-6, Public Availability of Settlement Agreements in Agency Enforcement Proceeding. This recommendation identifies best practices for providing public access to settlement agreements reached during administrative enforcement proceedings. It recommends that agencies develop policies addressing when to post such agreements on their websites; provides factors for agencies to consider in determining which agreements to post on their websites; and identifies best practices for presenting settlement agreements in a clear, logical, and accessible manner without disclosing sensitive or otherwise protected information."[5]
Model adjudication rules

ACUS issued its revised Model Adjudication Rules in September 2018. The MARs aim to provide consistent approaches to adjudication in an effort to address areas of debate, such as potential adjudicator bias, inequitable discovery, and administrative review practices.[6]

The revised MARs feature the following updated recommendations for agency adjudication procedures, among other guidelines:

  • "The revised MARs do not rely upon the term 'formal adjudication.' The term commonly refers to 'on the record' adjudications governed by the APA (5 U.S.C. §§ 554, 556–557) over which an ALJ presides. But the term is misleading because numerous adjudications that fall outside this definition have procedures whose formality rivals or exceeds adjudications with ALJs.2 As with the original MARs, the revised MARs are not designed for inquisitorial proceedings, although they may be instructive.
  • The Working Group has sought, where appropriate, to render the revised MARs more consistent with the FRCP as to the filing and service of records. These revisions include protecting private information, revising time-computation formulas, and revising the filing party’s certification requirements.
  • The revised MARs include new rules on, among other things, foreign-language interpretations and translations, and sequestration of witnesses.
  • The revised MARs’ discovery protective-order provisions account for various revisions to the FRCP.
  • The revisions also recognize advances in technology and provide adjudicators with discretion to use technology in a wide array of matters, including hearings and discovery.
  • The revised MARs provide significant revisions to the closing and reopening of the record.
  • The revised MARs incorporate certain revisions to the Federal Rules of Appellate Procedure. For instance, the revised MARs add new rules concerning the appellate record (Rule 411), additional evidence (Rule 412), and amicus briefs (Rule 421)."[6]

Apply minimum discovery standards in administrative proceedings

This proposal seeks to address concerns about access to discovery in agency adjudication by ensuring that agencies operate according to the APA's minimum discovery standards.

  • ACUS' 1970 recommendation "Discovery in Agency Adjudication" urges agencies support due process in adjudication by following the minimum discovery standards put forth in the APA.[7]
"Prehearing discovery in agency adjudication insures that the parties to the proceeding have access to all relevant, unprivileged information prior to the hearing. Its primary objectives include the more expeditious conduct of the hearing itself, the encouragement of settlement between the parties, and greater fairness in adjudication. Agencies that conduct adjudicatory proceedings generally enjoy broad investigatory powers, and fairness requires that private parties have equal access to all relevant, unprivileged information at some point prior to the hearing.
It is therefore recommended that each agency recognize the following minimum standards for discovery in adjudicatory proceedings subject to sections 5, 7 and 8 of the Administrative Procedure Act, now codified as 5 U.S.C. 554, 556 and 557. Individual agencies may permit additional discovery where appropriate and may tailor the recommended standards to meet the needs of particular types of proceedings where special or less elaborate discovery procedures will accomplish the same basic objectives or where the protective measures here recommended will be inadequate to achieve the ends sought. Each agency should undertake to train its hearing examiners in the application of the rules it promulgates to implement these standards. This training should draw upon the experience of other agencies, the Federal Courts, private practitioners, and bar associations."[7]

Base adjudicatory decisions on reliable evidence

This proposal suggests that agencies can strengthen due process protections in adjudication by ensuring that agencies rely on appropriate evidence rather than selected evidence aimed at a particular outcome.

  • PLF recommended that agency decisionmaking should be based on reliable evidence:
"The Fosters’ case demonstrates the due process deficit of unfair rules of evidence. Rather than using reliable evidence to evaluate whether the Fosters’ land contained a wetland, the USDA used the selection of a biased comparison site to dictate its preferred result. Agencies should make decisions based only on reliable evidence and should give people a fair opportunity to refute that evidence."[8]

Ensure timely and independent resolution of adjudications

This proposal suggests that agencies can strengthen due process protections in adjudication by guaranteeing that agencies act in a timely fashion and do not subject citizens to undue delays. Moreover, this proposal recommends that agencies can further strengthen due process protections in adjudication by ensuring that their review procedures are independent of their enforcement mechanisms.

  • PLF recommended that agencies proceed with adjudication in a timely manner and safeguard adjudicatory independence by separating review and enforcement responsibilities:
"[T]he case also demonstrates how agencies try to deny an impartial and effective review of their initial enforcement decisions and how they try to delay or deny access to courts to provide a truly neutral forum for deciding the dispute. The Army Corps’ internal review procedures were a sham, since they were not independent of the enforcement chain of command and any result in favor of the regulated party could be overruled by the original district official who made the initial decision. The Army Corps also spent four years trying to close the courthouse doors to Hawkes Co. to prevent independent scrutiny of the agency’s actions. Instead of resisting judicial review, agencies should guarantee prompt and independent adjudication."[8]

Require impartiality disclosures by adjudicators

This proposal recommends that agencies can strengthen due process protections in adjudication by disclosing information about the impartiality of federal administrative adjudicators. Agencies could use the disclosure data, according to this proposal, to improve transparency surrounding the impartiality of agency adjudicators and develop best practices to ensure adjudicator impartiality across agencies.

  • In his 2019 law review article "Some Kind of Hearing Officer," law professor Kent Barnett suggested that an impartiality disclosure could facilitate the protection of adjudicator independence from agency influence:[9]
"Impartiality disclosures are a relatively low-cost way of providing significant information to scholars, litigants, Congress, and agencies themselves about the current state of administrative adjudication. They provide a mechanism for obtaining complete and updated data for proceedings that are often forgotten or confused with others. As the findings reported here demonstrate, agency practice is extremely diverse and likely far from optimal. Disclosures may prove sufficient by themselves to alter agency behavior and bring us closer to optimal impartiality in administrative adjudication. Or they may serve as a tool for considering whether and to what extent Congress should promulgate government-wide impartiality protections for non-ALJs. After all, ACUS and scholars have already provided significant theoretical guidance on how agencies should think about adjudicatory impartiality. What is needed now is action. The time has come to move away from some kind of hearing officer and toward an optimal one, using impartiality disclosures as a first step."[9]

Reforming ALJ selection and oversight

This sub-category addresses how administrative law judges are selected and supervised to ensure independence and accountability.

Improve the process for selecting ALJs

This proposal suggests that the current method of selecting ALJs through competitive examinations is not sufficient to ensure high-quality ALJs. Instead, this proposal recommends that ALJs should be subject to a series of progressive promotions to ensure the retention of high performers.

  • In his 1979 law review article "The ALJ Fiasco—A Reprise," U.S. Supreme Court Justice Antonin Scalia argued that ALJ selection could be improved through a system of progressive promotions that would reward high performers and retain the most qualified individuals for the role.[10]
"What I am suggesting is that unless (as there is no reason to believe) the activity of being an administrative law judge is different from any other field of legal endeavor-or, indeed, any other field of human endeavor-the best way to achieve excellence is to promote from within, on the basis of observed performance. A blindman's buff, paper-record system is acceptable for the selection of neophyte judges, at lower levels of salary and responsibility; but the high-level judges, who are to conduct and decide the most difficult proceedings, should be chosen principally (if not exclusively) from among existing judges on a progressive promotion basis. Not only is this not a revolutionary thought; it is, I believe, the system envisioned by the APA."[10]

Centralize oversight of ALJs across agencies

This proposal suggests that the current method of selecting ALJs through competitive examinations is not sufficient to ensure high-quality ALJs. Instead, this proposal recommends that ALJs should be subject to a series of progressive promotions to ensure the retention of high performers.

  • In his 1979 law review article "The ALJ Fiasco—A Reprise," U.S. Supreme Court Justice Antonin Scalia argued that ALJ selection could be improved through a system of progressive promotions that would reward high performers and retain the most qualified individuals for the role.[10]
"What I am suggesting is that unless (as there is no reason to believe) the activity of being an administrative law judge is different from any other field of legal endeavor-or, indeed, any other field of human endeavor-the best way to achieve excellence is to promote from within, on the basis of observed performance. A blindman's buff, paper-record system is acceptable for the selection of neophyte judges, at lower levels of salary and responsibility; but the high-level judges, who are to conduct and decide the most difficult proceedings, should be chosen principally (if not exclusively) from among existing judges on a progressive promotion basis. Not only is this not a revolutionary thought; it is, I believe, the system envisioned by the APA."[10]

Counterpoint: Maintain informal adjudication if benefits outweigh costs

This proposal suggests that the status quo in agency adjudication is sufficient to protect individual procedural rights. Therefore, no action would be required to address agency adjudication procedures. Under this approach, agencies will continue to prefer the use of informal adjudication over formal APA procedures.

  • Funk proposes that one option to address procedural rights in agency adjudication is to do nothing. This approach would retain the status quo and avoid the potentially unnecessary redirection of agency time and resources.[1]
“One alternative is the no-action alternative. That is, nothing should be done; the trend is appropriate. This would presumably be the preferred alternative from the agencies’ perspective. After all, to the extent that courts will defer to their 'reasonable' interpretation of an ambiguous hearing directive, agencies will be able to choose their desired method of proceeding – invariably to opt in favor of non-APA adjudication. Inasmuch as in most cases the Due Process Clause will assure fundamental fairness, the argument would be that anything more is simply more time and resource intensive and unnecessary.”[1]

Procedural rights and legal protections

This category addresses ways to strengthen individual rights and ensure procedural fairness in administrative enforcement and adjudication.

Expanding due process protections

This sub-category includes reforms to protect individuals from arbitrary or unfair treatment in administrative proceedings.

Provide individuals with fair notice before adjudication

This proposal suggests that agencies can strengthen due process protections in adjudication by ensuring that citizens receive fair notice of adjudication and enforcement proceedings.

  • PLF recommended that agencies provide individuals with fair notice before moving forward with adjudication proceedings:
"To address the lack of fair notice of investigations and enforcement actions, agencies should establish procedures that provide proper notice and a fair opportunity for citizens to be heard before an enforcement action may proceed further."[8]

Comply with standard criminal trial notice before criminal enforcement

This proposal suggests strengthening procedural rights in agency adjudication by ensuring that agencies seeking criminal penalties provide fair notice to affected parties according to the standard notice for criminal trials, rather than the standard notice for civil actions.

  • Law professor Philip Hamburger proposed in his 2016 book "Is Administrative Law Unlawful?" that agencies can strengthen procedural rights in agency adjudication by complying with the standard notice for criminal trials rather than civil actions.[11]
"When agencies bring proceedings of a criminal nature against defendants, they should comply with the standard notice for criminal trials. This is different from the APA's requirements, which call for a standard that satisfies due process in civil actions."[11]

Make exculpatory evidence available in enforcement

This reform proposal would mandate that agencies share evidence that may support the respondent’s defense.

Prohibit limiting due process based on liberty/property interest

Liberty and property interests, according to this proposal, are impractical standards for agencies to apply in order to evaluate due process in agency adjudication.

  • Hamburger argues that liberty and property interest standards are too vague for courts to apply to evaluate due process protections.[11]
"Courts should not look at liberty or property interests to evaluate the due process protections of adjudication because they are unworkable standards that are too broad."[11]

Eliminate venue restrictions in legal challenges

This reform proposal removes statutory restrictions that limit where individuals can challenge agency actions.

Clarify when formal APA adjudication is legally required

Lower courts at times have exercised deference to agencies' interpretations of their statutory adjudication requirements, which some argue has spurred the increased use of informal adjudication over formal APA procedures. This proposal suggests ending the practice of deferring to agency interpretations of statutorily mandated adjudication procedures and requiring courts to independently determine when agencies must follow formal APA procedures.

  • Funk recommended that lower courts refrain from deferring to agency interpretations of statutory adjudication requirements. Agencies, according to Funk, will most often seek to implement less stringent informal adjudication procedures.[1]
“[T]he lower courts seem to have reached a consensus that any statutory requirement for an adjudicatory hearing that does not expressly provide that it is a 'hearing on the record' is deemed ambiguous as to whether it requires an APA adjudication. From this they have concluded that Chevron deference is applicable to the agency’s choice of procedure – APA adjudication or otherwise. As the earlier discussion suggested, this is an error. However, it appears to be an error widely held and deeply settled, at least in the lower courts. The Supreme Court has not addressed the issue. If a case could be brought to its attention on this issue, the Court might well grant certiorari, despite the apparent lower court agreement. The Court has recently seemed to be willing to address fundamental issues under the APA when a compelling case could be made that the lower courts have strayed from the original meaning and purpose. ... Were the Court to take the case and reverse the lower court decisions, this would … [reestablish] the presumption that an evidentiary hearing required by a statute is indeed to be an APA adjudication.”[1]

Enhancing access to justice

This sub-category proposes measures to reduce barriers that individuals may face when contesting agency actions.

Shift the burden of proof to agencies in regulatory proceedings

This proposal suggests that agencies can strengthen due process protections in adjudication by bearing the burden of proof in defending their regulatory activity. Agencies, according to this proposal, can perform analyses and audits to support their regulatory activity and to prevent shifting the burden of proof to individuals.

  • PLF recommended that agencies can strengthen due process protections in adjudication by bearing the burden of proof for their regulatory activities:
"The ranchers’ case demonstrates that those who face potentially crippling harm from unaccountable rulemaking should not bear the burden of proof of ensuring that regulatory agencies follow the rules set out by Congress. Agencies, such as FWS, should be required to conduct meaningful regulatory analyses where Congress has required them to do so. This could be achieved through the commencing of audits by agencies that are required to conduct economic analyses. These audits would look for instances in which the burden is on the government to establish whether and to what extent an agency action would impact individuals and businesses. If the agency relies on guidance, procedures, or internal documents that allow it to shift this burden of proof to a regulatory presumption of zero impact, these should be discarded in favor of a meaningful analytical tool.
"Requiring federal agencies to discharge this burden would eliminate unnecessary public and private costs. Similarly, requiring FWS to measure the costs of its actions rather than assume them away would go a long way in avoiding needless litigation costs or the imposition of economic costs by the tailoring of critical habitat designations to avoid them, as Congress intended."[8]

Allow prevailing private parties to recover legal costs

This reform proposal enables individuals to recover attorney’s fees after successfully challenging agency actions.

Permit judicial review in state courts without exhausting remedies

This reform proposal would allow individuals to seek judicial relief without fully pursuing administrative appeals first.

Require compensation for takings through state courts

This reform proposal ensures that individuals can pursue compensation claims in state courts for regulatory takings.

Create a good-faith defense against enforcement actions

This reform proposal would allow individuals to defend themselves against enforcement by showing good-faith compliance efforts.

Allow judicial review of license or permit denials allegedly based on political motives

This reform proposal would permit individuals to bypass administrative law judges and seek judicial review when they believe a license or permit was denied or revoked for political reasons.

Create a regulatory safe harbor for reliance on advisory opinions

This reform proposal would establish a safe harbor protecting regulated parties who rely in good faith on agency advisory opinions by treating such reliance as a defense against enforcement.

Allow legal challenges to rules based on flawed cost-benefit analysis

This reform proposal would give citizens the right to challenge regulations in court if the underlying cost-benefit analysis is inaccurate, incomplete, or misleading.

Transparency and public access

This category seeks to make agency processes and data more visible and understandable to the public.

Public access to agency data and decisions

This sub-category emphasizes transparency in how agencies assess rules and impose penalties.

Make cost-benefit data easily accessible to the public

This reform proposal would require agencies to publish data used in their economic analyses of rules.

Increase transparency around monetary penalties

This proposal aims to improve transparency surrounding agency monetary penalties by making agency penalty schedules publicly available.

  • The Pacific Legal Foundation (PLF), a 501(c)(3) nonprofit organization that aims to advance principles of limited government, proposed that agencies should create and provide tables to the public that break down their minimum and maximum penalties in order to give citizens fair notice of potential penalty enforcement:
"To ensure greater transparency in penalty enforcement, agencies with the authority to issue fines should publish tables identifying classes of common de minimis violations. These tables should identify the maximum administrative penalty and under what circumstances it may be sought. This would ensure potential agency targets like the Sacketts are provided adequate notice of the penalties to which they may be subject and that arbitrary penalties aren’t threatened or collected. Further, when a violation is minor and thus ineligible for criminal prosecution or harsh civil penalties, the tables should limit the imposition of daily accrued penalties for the duration of a violation. Such penalties for minor infractions should not accrue daily, especially when the citizen is contesting the validity of the agency determination and there is no concrete, additional harm from his not bending immediately to the agency’s will."[8]

Create online database of guidance

This reform proposal advocates for the creation of an online database to publicly track and provide access to all agency guidance documents.

Public engagement in rulemaking

This sub-category proposes reforms to strengthen public input in the regulatory process.

Require at least two public hearings before reinstating repealed rules

This reform proposal mandates additional public input opportunities before restoring previously withdrawn rules.

Require justification for ignoring public comments

This reform proposal would compel agencies to explain why significant public feedback was not adopted in final rules.

Use public input to ensure rules provide more benefits than costs

This approach emphasizes that agencies should rely on public participation to assess whether a proposed rule’s benefits outweigh its costs before moving forward.

Promote engagement between businesses and regulators through increased exposure

This approach argues that fostering direct interaction between businesses and regulators—framing the relationship as “us and them” rather than adversarial—can improve trust and compliance through mutual understanding.

Oversight and structural limitations

This category includes proposals aimed at limiting agency discretion and enhancing structural accountability.

Limit broad delegations and reduce deference practices

This proposal recommends that Congress rein in its delegation and deference practices in order to protect procedural rights. Changes to agency adjudication procedures aimed at strengthening due process protections, according to this proposal, will not be as effective at protecting procedural rights as limiting delegation and deference practices in the first instance.

  • Administrative law scholar Ronald Cass suggested in his 2017 research paper "Due Process and Delegation: 'Due Substance' and Undone Process in the Administrative State" that strengthening due process in agency adjudication would be a second-best approach to protecting procedural rights. Instead, Cass claimed that the most effective approach to shore up procedural rights would be for Congress to restrain its delegation and deference practices.
“Reliance on softer notions of due process may be especially problematic in respect to questions of administrative process, which often lie outside the ambit of appropriate due process constraints. Even where due process does apply, other legal rules strongly influence the degree to which administrative processes work and frequently provide better avenues for constraining them. Addressing directly the problematic nature of many delegations of authority to administrators and of inappropriate judicial deference to administrative determinations by and large will be preferable to due process challenges to administrative action. Due process can be a complement to reinvigorated delegation constraints and reformed deference rules or a partial substitute—used to compensate for failure to properly reform those doctrines—but it is at best a ‘second best’ option.”[12]

Prohibit sub-delegation of authority without oversight

See also: Nondelegation doctrine

This proposal recommends that agencies can strengthen due process protections in adjudication by limiting the exercise of rulemaking authority delegated by Congress to agency heads and avoiding the sub-delegation of such authority to lower-level agency employees.

  • PLF proposed that agencies can shore up due process protections in adjudication by ensuring that only senior agency officials exercise delegated authority:
"Manor’s case highlights a structural due process deficit that may exist in many government agencies: The delegation of rulemaking authority from Congress to senior agency appointees is wrongly redelegated to unaccountable lower-level civil servants. Kux alone, in fact, issued nearly 200 rules that purport to bind the public over the last couple of decades.
"Delegating rulemaking authority to someone not properly appointed as an “Officer of the United States” violates one of the most important separation-of-powers clauses in the Constitution, the Appointments Clause. That Clause requires permanent executive officials who wield significant federal power, such as rulemaking or adjudication powers, to be nominated by the President and confirmed by the Senate. This process ensures that officers may wield power only after being approved by high-ranking elected officials directly accountable to the people."[8]

Improve coordination among agencies with overlapping authority

This proposal suggests that agencies can strengthen due process protections in adjudication by ensuring that a single agency take the lead in cases where agency authority overlaps. Such agency coordination, according to this proposal, would conserve agency resources by preventing multiple investigations into a single alleged regulatory violation.

  • PLF proposed that agencies should coordinate adjudication and enforcement activities in situations where agency authority overlaps:
"Where statutes provide agencies with overlapping authority, the agencies should identify a single lead agency with sole authority to make the relevant, factual determinations, with the other agency bound by these decisions. This would prevent multiple investigations with conflicting demands and an unclear lead decision maker, as the Boyd family experienced, improving both due process and efficiency concerns. Where agencies do not have overlapping authority but their mandates and the activities they regulate do overlap, agencies beginning an investigation must notify all relevant agencies of the case. This alert would function to require those agencies to begin their investigations at the risk of waiving their claims. This would prevent successive investigations over the same conduct."[8]

See also

Footnotes

  1. ↑ 1.0 1.1 1.2 1.3 1.4 Penn State Law Review, "Slip Slidin' Away—The Erosion of APA Adjudication," 2017
  2. ↑ Missouri Law Review, "Why Bias Challenges to Administrative Adjudication Should Succeed," 2016
  3. ↑ 3.0 3.1 Administrative Conference of the United States, "The Federal Administrative Judiciary," 1992
  4. ↑ 4.0 4.1 4.2 4.3 4.4 4.5 Federal Register, "Adoption of Recommendations," July 9, 2024
  5. ↑ 5.0 5.1 5.2 5.3 5.4 Federal Register, "Adoption of Recommendations," January 13, 2023
  6. ↑ 6.0 6.1 Administrative Conference of the United States, "MODEL ADJUDICATION RULES (rev. 2018)," accessed August 10, 2020
  7. ↑ 7.0 7.1 Administrative Conference of the United States, "Discovery in Agency Adjudication," 1970
  8. ↑ 8.0 8.1 8.2 8.3 8.4 8.5 8.6 Pacific Legal Foundation, "The Regulatory State’s Due Process Deficits," accessed August 13, 2020
  9. ↑ 9.0 9.1 Washington Law Review, "Some Kind of Hearing Officer," 2019
  10. ↑ 10.0 10.1 10.2 10.3 The University of Chicago Law Review, "The ALJ Fiasco—A Reprise," 1979
  11. ↑ 11.0 11.1 11.2 11.3 Hamburger, P. (2015). Is Administrative Law Unlawful? Chicago: University of Chicago Press.
  12. ↑ George Mason Legal Studies Research Paper Series, "Due Process and Delegation: 'Due Substance' and Undone Process in the Administrative State" 2017
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Administrative Procedure Act • Antiquities Act • Civil Service Reform Act • Clayton Antitrust Act • Communications Act of 1934 • Congressional Review Act • Electronic Freedom of Information Act • Federal Food, Drug, and Cosmetic Act of 1938 • Federal Housekeeping Statute • Federal Reserve Act • Federal Trade Commission Act of 1914 • Freedom of Information Act • Government in the Sunshine Act • Independent Offices Appropriations Act of 1952 • Information Quality Act • Interstate Commerce Act • National Labor Relations Act • Paperwork Reduction Act • Pendleton Act • Privacy Act of 1974 • Regulatory Flexibility Act • REINS Act • REINS Act (Wisconsin) • Securities Act of 1933 • Securities Exchange Act of 1934 • Sherman Antitrust Act • Small Business Regulatory Enforcement Fairness Act • Truth in Regulating Act • Unfunded Mandates Reform Act
Cases
Abbott Laboratories v. Gardner • A.L.A. Schechter Poultry Corp. v. United States • Association of Data Processing Service Organizations v. Camp • Auer v. Robbins • Chevron v. Natural Resources Defense Council • Citizens to Preserve Overton Park v. Volpe • Federal Trade Commission (FTC) v. Standard Oil Company of California • Field v. Clark • Food and Drug Administration v. Brown and Williamson Tobacco Corporation • Humphrey's Executor v. United States • Immigration and Naturalization Service (INS) v. Chadha • J.W. Hampton Jr. & Company v. United States • Lucia v. SEC • Marshall v. Barlow's • Massachusetts v. Environmental Protection Agency • Mistretta v. United States • National Federation of Independent Business (NFIB) v. Sebelius • National Labor Relations Board v. Noel Canning Company • National Labor Relations Board v. Sears, Roebuck & Co. • Panama Refining Co. v. Ryan • Securities and Exchange Commission v. Chenery Corporation • Skidmore v. Swift & Co. • United States v. Lopez • United States v. Western Pacific Railroad Co. • Universal Camera Corporation v. National Labor Relations Board • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council • Wayman v. Southard • Weyerhaeuser Company v. United States Fish and Wildlife Service • Whitman v. American Trucking Associations • Wickard v. Filburn • Wiener v. United States
Terms
Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
Bibliography
Agencies
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