ADMINISTRATIVE PROCEDURE ACT OF 1946
Since its original enactment in 1946, the Administrative
Procedure Act (APA), 5 U.S.C.A. §§ 501
et seq., has governed the process that federal
administrative agencies follow. The statute
applies to all federal agencies except for those
that are expressly exempted from its provisions.
Despite the broad nature of the act, however, it
allows flexibility among the various agencies in
carrying out their responsibilities.
Although a number of administrative agencies
had been created during the nineteenth and
early twentieth centuries, no federal law at the
time governed the conduct of these agencies.
Legislation that was enacted during the NEW
DEAL era of the 1930s established a new series of
administrative agencies. In 1936, President
FRANKLIN D. ROOSEVELT established the President’s
Committee on Administrative Management.
The committee’s report found that
agencies were “irresponsible” and that they had been given “uncoordinated powers.” Moreover,
the report characterized administrative agencies
as a “headless ‘fourth branch’ of government.”
The committee found that the laws that created
administrative agencies failed to distinguish
between the legislative and executive functions
of those committees. It recommended that each
of the existing administrative agencies should be
moved under the EXECUTIVE BRANCH of the
government, and that the judicial powers of the
agencies should be limited. Members of Congress
and many commentators at the time disagreed
with the committee’s findings. At the
center of the debate was the need to maintain a
SEPARATION OF POWERS with respect to the
work of federal agencies.
In 1939, President Roosevelt established the
Attorney General’s Committee on Administrative
Procedure. The committee was charged with
the responsibility of reviewing the criticisms of
the federal administrative processes and with
formulating recommendations for improvement
of these processes. The committee issued
its recommendations in 1941 in a detailed
report of almost 500 pages. Legislation was
drafted based upon the recommendations of the
1941 report, but the United States’s entrance
into WORLD WAR II interrupted the enactment
of the statute. Following the conclusion of the
war, the legislation was reintroduced. After a
series of compromises, Congress enacted the
Administrative Procedure Act in 1946.
In 1947, the DEPARTMENT OF JUSTICE issued
the Attorney General’s Manual on the Administrative
Procedure Act. This document provides
insight regarding the application of the act and
remains valuable as a research tool to this day.
Some of the information contained in this manual
provides analysis that the courts have not yet
considered.
The purpose of the APA is to provide minimum
procedural standards that federal administrative
agencies must follow. It distinguishes
between two major forms of administrative
functions: agency rulemaking and agency adjudication.
Administrative rulemaking is analogous
to the legislative acts, while an
administrative adjudication is analogous to a
judicial decision. This distinction contained in
the APA has long been the subject of scholarly
debate. Some argue that such a dichotomy is
unnecessarily rigid and that it might not always
allow for the most appropriate procedures for a
particular agency. Supporters of the distinction
between rulemaking and adjudication contained
in the APA note that this distinction best
represents the basic functions of administrative
agencies.
The rulemaking provisions of the APA are
more detailed than those governing adjudications.
Most agencies engage in notice-and-comment
rulemaking, which is required as the
minimum rulemaking procedure under the
APA. Under notice-and-comment rulemaking,
agencies are required to give the public advance
notice of the contents of proposed rule and to
offer the public an opportunity to express their
views of the proposed rule before the agency.
Some agencies are required by the statutes that
created them to follow more stringent standards,
whereby all of the agency’s actions during
rulemaking are conducted “on the record.” This
latter type of rulemaking is known as formal
rulemaking.
The APA defines and governs only those
types of adjudications that are required by
statute to be conducted “on the record after
opportunity for an agency hearing.” If an agency
is required to conduct such a formal adjudication
under the APA, it must engage in a proceeding
resembling a trial. However, if the
agency is not required to conduct such a hearing,
the APA remains silent. Accordingly, an
agency may adopt its own procedure for an
informal adjudication, so long as the agency
otherwise does not violate the U.S. Constitution
or other law.
Other provisions of the APA govern JUDICIAL
REVIEW of agency actions and public access
to agency-created law and information emanating
from agencies. The judicial-review provisions
under the APA have given rise to the
greatest amount of scholarship regarding federal
ADMINISTRATIVE LAW, although these provisions
are contained in only six sections of the
APA. Courts have similarly grappled with judicial
review of agency actions. For instance, the
case of Chevron U.S.A., Inc. v. National Resources
Defense Council, Inc., 467 U.S. 837, 104 S. Ct.
2778, 81 L. Ed. 2d 694 (1984), has been cited
more often than any other decision in the history
of the U.S. Supreme Court. In Chevron, the
U.S. Supreme Court held that interpretive decisions
of administrative agencies are entitled to
substantial judicial deference. In doing so, it
enhanced the efficacy of administrative bodies
in mitigating the transition costs of legislative
law.
The APA was designed to increase access to
agency law by allowing the public to participate
in agencies’ decision-making process. In 1966,
Congress enacted the FREEDOM OF INFORMATION
ACT, Pub. L. No. 89-487, 80 Stat. 250 (codified
as amended at 5 U.S.C.A. § 552), which
greatly increased the amount of government
information that is available to the public. Congress
later enacted similar laws designed to make
governmental decisions open to the public,
including the PRIVACY ACT OF 1974, Pub. L. No.
93-579, 88 Stat. 1896 (codified as amended at 5
U.S.C.A. § 552a), the Government in the Sunshine
Act of 1976, Pub. L. No. 94-409, 90 Stat.
1241 (codified at 5 U.S.C.A. § 552b), and the
Electronic Freedom of Information Act of 1996,
Pub. L. No. 104-231, 110 Stat. 2422 (codified as
amended at 5 U.S.C.A. § 552).
The amendments allowing for enhanced
access to government information represent the
majority of revisions to the APA since its original
enactment in 1946. Although efforts to
revise the APA have been undertaken on a number
of occasions, alternatives to the current language
of the act have failed to garner sufficient
support in Congress to complete a major revision.
The act thus remains as the focal point of
administrative process in the federal government.
FURTHER READINGS
Allen, William H. 1986. “The Durability of the Administrative
Procedure Act.” Virginia Law Review 235.
Bonfield, Arthur Earl. 1986. “The Federal APA and State
Administrative Law.” Virginia Law Review 297.
Stein, Jacob A. et al. 2003. Administrative Law. New York:
LexisNexis/Matthew Bender.
