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The Administrative Procedure Act of 1946

Original Text

Effective Dates
6/11/1946 - Present

Reform Goals

Regulate, standardize, and oversee the administrative state. To be “a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated” according to Senator Pat McCarran.

Requirements (What of Whom?)
The Administrative Procedure Act contains three broad requirements that apply to both executive branch and independent regulatory agencies: 1) various governmental actions must be available to public scrutiny, 2) there must be a public commenting period and reporting on the basis/purpose of rules, as well as hearings for parties to a dispute, 3) aggrieved parties have the right to challenge agency action in federal court.

Who oversees the rule?
Agency rulemaking and enforcement actions may be challenged in federal court, although the strength of this oversight is highly nuanced.

Reform “Teeth”
Agencies may be sued in federal court for three categories under the APA: [1]

  1. An agency did not follow APA mandated processes for a new rule.

  2. An agency created a rule that incorrectly interprets the original Congressional statute (e.g. law) giving the agency power to regulate a certain issue.   

  3. A rule violates a Constitutional right, for example, the right to free speech.  

Outcomes
The APA established key processes for rulemaking that improved regulatory transparency, but fell short of a true “bill of rights.”  In most cases, American citizens cannot challenge agency rule enforcement in federal court, leaving them vulnerable to the arbitrary discretion of regulators (see below).

Commentary

While agency rulemaking is subject to some judicial oversight, agency enforcement of those rules is subject to a special breed of due process. Specifically, the APA breaks down agency adjudication (e.g. enforcement of rules) into two categories:

Formal adjudication -  An agency holds a trial-like hearing with witness testimony, a written record and a final decision on whether a citizen has violated a regulation. In this case, citizens can challenge a decision in a federal court. Federal courts can use “substantial evidence” (e.g. reviewing all the facts of the case) to decide whether agency action was appropriate. This is the normal type of due process citizens expect.

Informal adjudication - An agency decides through "inspections, conferences and negotiations" that a citizen has violated a regulation. A citizen can only appeal to the regulator themselves (an “administrative law judge” court run by the agency) to reverse the decision. The only way for a citizen to challenge informal adjudication is to prove in court that a rule is "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.”

Unfortunately for citizens, a significant portion of regulatory enforcement happens through informal adjudication, and proving an informal enforcement action is 1) "arbitrary and capricious” 2) “an abuse of discretion” or 3) “otherwise not in accordance with the law” is notoriously difficult.  A key Supreme Court case in 1984 set a precedent known as “Chevron deference” [2], which gave agencies the right to interpret the meaning of ambiguous Congressional statutes however they would like as long as they give a “reasonable explanation.” In other words, agencies can levy penalties, impose heavy legal costs, and ultimately shut down businesses based on very ambiguous laws, and citizens/businesses have little recourse.

As the first Administrator of OIRA, Christopher DeMuth, commented, “Today the records are so sprawling and diffuse, always with some support somewhere for whatever the agency decides to do, that the conscientious reviewing court is often hard pressed to judge whether a decision was arbitrary, let alone cost justified.”

References:

  1. Justia.com. Administrative Law. "Challenging Regulatory Actions." Accessed February 1, 2017. Link 
  2. Cornell University Law School. Legal Information Institute. "Chevron Deference." Accessed February 1, 2017. Link

Additional Reading

  • Burrows, Vanessa and Todd Garvey. “A Brief Overview of Rulemaking and Judicial Review.” Jan 4, 2011. Link