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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.

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