Administrative Procedure Act (United States)

Administrative Procedure Act of 1946
Great Seal of the United States
Long title An Act to improve the administration of justice by prescribing fair administrative procedure.
Acronyms (colloquial) APA
Enacted by the 79th United States Congress
Effective June 11, 1946
Public law 79-404
Statutes at Large 60 Stat. 237
Titles amended 5 U.S.C.: Government Organization and Employees
U.S.C. sections created 5 U.S.C. ch. 5, subch. I § 500 et seq.[1]
Legislative history
Major amendments
Recodified by Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 383
United States Supreme Court cases
Citizens to Preserve Overton Park v. Volpe
Vermont Yankee Nuclear Power Corp. v. NRDC

The Administrative Procedure Act (APA), Pub.L. 79–404, 60 Stat. 237, enacted June 11, 1946, is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. In order to protect citizens, the APA also grants the judiciary oversight over all agency actions.[2] It is one of the most important pieces of United States administrative law. The Act became law in 1946.

The APA applies to both the federal executive departments and the independent agencies. U.S. Senator Pat McCarran called the APA "a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated" by federal government agencies. The text of the APA can be found under Title 5 of the United States Code, beginning at Section 500.

There is a similar Model State Administrative Procedure Act (Model State APA) which was drafted by the National Conference of Commissioners on Uniform State Laws for oversight of state agencies. Not all states have adopted the model law wholesale as of 2007. The federal APA does not require systematic oversight of regulations prior to adoption as suggested by the Model APA.[3]

Historical background

Beginning in 1933, President Franklin D. Roosevelt and the Democratic Congress enacted several statutes that created new federal agencies as part of the New Deal legislative plan, established to guide the United States through the social and economic hardship caused by the Great Depression. However, the Congress became concerned about the expanding powers that these autonomous federal agencies now possessed, resulting in the enactment of the APA to regulate, standardize and oversee these Federal agencies.[1]

The APA was born in a contentious political environment.[4] Professor George Shepard claims that Roosevelt’s opponents and supporters fought over passage of the APA "in a pitched political battle for the life of the New Deal" itself.[5] Shepard does note, however, that a legislative balance was struck with the APA, expressing "the nation's decision to permit extensive government, but to avoid dictatorship and central planning."[6]

A 1946 U.S. House of Representatives report discusses the 10-year period of "painstaking and detailed study and drafting" that went into the APA.[7] Because of rapid growth in the administrative regulation of private conduct, Roosevelt ordered several studies of administrative methods and conduct during the early part of his four-term presidency.[7] Based on one study, Roosevelt commented that the practice of creating administrative agencies with the authority to perform both legislative and judicial work "threatens to develop a fourth branch of government for which there is no sanction in the Constitution."

In 1939, Roosevelt requested that Attorney General Frank Murphy form a committee to investigate practices and procedures in American administrative law and suggest improvements. That committee's report, the Final Report of Attorney General's Committee on Administrative Procedure, contains detailed information about the development and procedures of the federal agencies.[8]

The Final Report defined a federal agency as a governmental unit with "the power to determine ... private rights and obligations" by rulemaking or adjudication.[8] The report applied that definition to the largest units of the federal government, and identified "nine executive departments and eighteen independent agencies."[8] If various subdivisions of the larger units were considered, the total number of federal agencies at that time increased to 51. In reviewing the history of federal agencies, the Final Report noted that almost all agencies had undergone changes in name and political function.

Of the 51 federal agencies discussed in the Final Report, eleven were created by statute before the Civil War. From 1865 to 1900, six new agencies were created, notably the Interstate Commerce Commission in 1887 in response to widespread criticism of the railroad industry. From 1900 to 1930, seventeen agencies were created by statute, and eighteen more during the 1930s as part of Roosevelt's New Deal. The Final Report made several recommendations about standardizing administrative procedures, but Congress delayed action as the U.S. entered World War II.

Since 2005, the House Judiciary Committee has been undertaking an Administrative Law, Process and Procedure Project to consider changes to the Administrative Procedure Act.

Basic purposes

Agencies are unique governmental bodies, capable of exercising powers characteristic of all three branches of the United States federal government: judicial, legislative and executive. An individual agency typically will possess only the power of the branch that set it up, or possibly powers characteristic of two branches, but the separation of powers doctrine dictates that all three powers should not be vested in one body. As recognized by President Roosevelt and others, the creation and function of federal agencies can cause separation of powers issues under the United States Constitution. To provide constitutional safeguards, the APA creates a framework for regulating agencies and their roles. According to the Attorney General's Manual on the Administrative Procedure Act, drafted after the 1946 enactment of the APA, the basic purposes of the APA are:[9]

  1. to require agencies to keep the public informed of their organization, procedures and rules;
  2. to provide for public participation in the rulemaking process;
  3. to establish uniform standards for the conduct of formal rulemaking and adjudication;
  4. to define the scope of judicial review.

The APA's provisions apply to many federal governmental institutions. The APA in 5 U.S.C. 551(1) defines an "agency" as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency", with the exception of several enumerated authorities, including Congress, federal courts, and governments of territories or possessions of the United States.[10] Courts have also held that the U.S. President is not an agency under the APA. Franklin v. Mass., 505 U.S. 788 (1992).

The Final Report organized federal administrative action into two parts: adjudication and rulemaking.[8] Agency adjudication was broken down further into two distinct phases of formal and informal adjudication. Formal adjudication involve a trial-like hearing with witness testimony, a written record, and a final decision. Under informal adjudication, agency decisions are made without these formal procedures, instead using "inspections, conferences and negotiations". Because formal adjudication produces a record of proceedings and a final decision, it may be subject to judicial review. As for rulemaking resulting in agency rules and regulations, the Final Report noted that many agencies provided due process through hearings and investigations, but there was still a need for well-defined uniform standards for agency adjudication and rulemaking procedures.

Standard of judicial review

The APA requires that in order to set aside agency action not subject to formal trial-like procedures, the court must conclude that the regulation is "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law."[11] However, Congress may further limit the scope of judicial review of agency actions by including such language in the organic statute. To set aside formal rulemaking or formal adjudication whose procedures are trial-like,[12] a different standard of review allows courts to question agency actions more strongly. For these more formal actions, agency decisions must be supported by "substantial evidence"[13] after the court reads the "whole record",[13] which can be thousands of pages long.

Unlike arbitrary and capricious review, substantial evidence review gives the courts leeway to consider whether an agency's factual and policy determinations were warranted in light of all the information before the agency at the time of decision. Accordingly, arbitrary and capricious review is understood to be more deferential to agencies than substantial evidence review. Arbitrary and capricious review allows agency decisions to stand as long as an agency can give a reasonable explanation for its decision based on the information it had at the time. In contrast, the courts tend to look much harder at decisions resulting from trial-like procedures because those agency procedures resemble actual trial-court procedures, but Article III of the Constitution reserves the judicial powers for actual courts. Accordingly, courts are strict under the substantial evidence standard when agencies acts like courts because being strict gives courts final say, preventing agencies from using too much judicial power in violation of separation of powers.

The separation of powers doctrine is less of an issue with rulemaking not subject to trial-like procedures. Such rulemaking gives agencies more leeway in court because it is similar to the legislative process reserved for Congress. Courts' main role here is ensuring agency rules conform to the Constitution and the agency's statutory powers. Even if a court finds a rule unwise, it will stand as long as it is not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law".[14]

Publication of regulations

Rules and regulations issued by federal administrative agencies are published chronologically in the Federal Register. Rules and regulations are then organized by topic in a separate publication called the Code of Federal Regulations. In comparing publication of regulations to publication of statutes, the Federal Register is analogous to the United States Statutes at Large and the Code of Federal Regulations is analogous to the United States Code.

See also

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  1. 1 2 Hall, D: Administrative Law Bureaucracy in a Democracy 4th Ed., page 2. Pearson, 2009.
  2. 5 USC §706
  3. (2007). OVERSIGHT AND INSIGHT: LEGISLATIVE REVIEW OF AGENCIES AND LESSONS FROM THE STATES Archived February 22, 2010, at the Wayback Machine.. Harvard Law Review.
  4. Shepard, George. Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics. 90 Nw. U. L. Rev. 1557 (1996)
  5. Shepard, George. Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics. 90 Nw. U. L. Rev. 1562 (1996)
  6. Shepard, George. Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics. 90 Nw. U. L. Rev. (1996)
  7. 1 2 Administrative Procedure Act, Report of the House Judiciary Committee, No. 1989, 79th Congress, 1946.
  8. 1 2 3 4 Final Report of Attorney General's Committee on Administrative Procedure (Senate Document No. 8, 77th Congress, First Session, 1941)
  9. U.S. Department of Justice (1947). "Attorney General's Manual on the Administrative Procedure Act". Florida State University College of Law.
  10. 5 U.S.C. § 551(1)
  11. 5 U.S.C. § 706(2)(A)
  12. 5 U.S.C. §§ 556557
  13. 1 2 5 U.S.C. § 556(d)
  14. 5 U.S.C. § 706

External links

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