| Acronym | APA |
|---|---|
| Enacted by the | 79th United States Congress |
| Citations | |
| Public Law | 79-404 |
| Stat. | 60 Stat. 237 |
| Codification | |
| U.S.C. sections created | 5 U.S.C. 500 et seq.[1] |
| Legislative history | |
| Major amendments | |
| Recodified by Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 383 | |
| Relevant Supreme Court cases | |
| Citizens to Preserve Overton Park v. Volpe Vermont Yankee Nuclear Power Corp. v. NRDC |
|
| Administrative law |
|---|
| General principles |
| Administrative court · Certiorari · Delegated legislation · Exhaustion of remedies · Habeas corpus · Justiciability · Legitimate expectation · Mandamus · Natural justice · Nondelegation doctrine · Patently unreasonable · Polycentricity · Prerogative writ · Privative clause (ouster clause) · Quo warranto · Rulemaking · Ultra vires · Writ of prohibition |
| Administrative law in common law jurisdictions |
| Australia · Canada · England · Scotland · Singapore · United States |
| Administrative law in civil law jurisdictions |
| China · Mongolia · Ukraine |
| Related topics |
| Constitutional law · Judicial review |
The Administrative Procedure Act (APA), Pub.L. 79-404, 60 Stat. 237, enacted June 11, 1946, is the United States federal law that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review agency decisions. 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.[2]
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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, designed to deliver the United States from the social and economic hardship of the Great Depression. However, following the Great Depression and World War II the Congress became concerned about the expanding powers that federal agencies possessed, resulting in the enactment of the APA to regulate and standardize federal agency procedures.[1]
In a law journal article on the history of the APA,[3] Professor George Shepard discusses the contentious political environment from which the APA was born. 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.[3] 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."[3]
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.[4] 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.[4] 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,[5] contains detailed information about the development and procedures of the federal agencies.
The Final Report defined a federal agency as a governmental unit with "the power to determine...private rights and obligations" by rulemaking or adjudication.[5] The Final Report applied that definition to the largest units of the federal government, and identified "19 executive departments and 18 independent agencies."[5] 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, 11 were created by statute prior to the Civil War. From 1865 to 1900, six new agencies were created. Most notable was the formation of the Interstate Commerce Commission, created in 1887 in response to widespread criticism of the railroad industry. The period of 1900 to 1940, however, saw the greatest expansion of federal administrative power, with 35 new agencies created by statute. Eighteen of these were created during the 1930s, from statutes enacted as part of Roosevelt's New Deal. The Final Report made several recommendations about standardizing administrative procedures, but Congress delayed action because the U.S. entered World War II.
Since 2005, the House Judiciary Committee has been undertaking a Administrative Law, Process and Procedure Project to determine what, if any, changes should be made to the Administrative Procedure Act.
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 unique role. According to the Attorney General's Manual on the Administrative Procedure Act (1947), drafted after the 1946 enactment of the APA, the basic purposes of the APA are: (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.[6]
The APA's provisions apply to many federal governmental institutions. The APA in 5 U.S.C. 551(1)[7] 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 the Congress, federal courts, and governments of territories or possessions of the United States. 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. (p. 5) Agency adjudication was broken down further into two distinct phases of formal and informal adjudication. (Ibid.) Formal adjudication involved a trial-like hearing with witness testimony, a written record and a final decision. Under informal adjudication, however, agency decisions are made without formal trial-like procedures, using "inspections, conferences and negotiations" instead. (Ibid.) 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 a need for well-defined, uniform standards for agency adjudication and rulemaking procedures.
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."[8] 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 (see APA, 5 U.S.C 556[9] - 557[10]), a different standard of review allows courts to question agency action more strongly. For these more formal actions, agency decisions must be supported by "substantial evidence"[11] after the court reads the "whole record,"[12] 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 the 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 a lot more leeway in court because it is much more like the legislative process reserved for Congress in Article II. Courts' main role here is ensuring agency rules line up with the Constitution and with agency's statutory commands from Congress. Even if a court finds a rule very unwise, it will stand as long as it is not "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law."
Rules and regulations issued by federal administrative agencies are published chronologically (by date of issuance) in the Federal Register. Rules and regulations are then organized by topic (subject matter) 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.
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