Welcome to the final installment of Ballotpedia’s Learning Journey on the Administrative Procedure Act (APA)!
Let’s review the highlights:
What is the APA?
The APA is a federal law passed in 1946 establishing uniform procedures for federal agency rulemaking and adjudication. The APA also addresses policy statements and licenses issued by agencies and provides for judicial review of agency adjudications and other final decisions.
History of the APA
President Franklin D. Roosevelt (D) formed a presidential committee in 1936 to study the federal administrative and regulatory process. The committee issued a report referring to federal administrative agencies as a "headless 'fourth branch' of government" and criticizing what the committee understood as a lack of oversight and coordination among the various agencies. In 1939, 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. Following World War II, President Harry Truman (D) signed the APA into law in 1946.
APA Procedures
The APA outlines administrative processes for agencies, including rulemaking, adjudication, and judicial review of agency actions.
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:
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. 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" and presided over by an administrative law judge. The law does not cover informal adjudications, meaning that an agency may adopt its own procedures for such proceedings.
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."
Arguments about agency dynamics in the context of the APA
The following arguments summarize key claims in the debate surrounding the constitutional dynamics of the APA:
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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.
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Argument: The APA needs to be resuscitated and agencies should return to formal procedures
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.
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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.
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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.
Thank You!
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Review:
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