Administrative Procedures Act (APA)

The Administrative Procedures Act (APA) governs the way federal agencies make and enforce regulations. First made law in 1946, it was the product of concern about the rapid increase in federal agencies and their power at the beginning of the 20th century. Federal agencies were not new—the first was authorized in 1789 to estimate appropriate import duties. Over the next 120 years, about one third of federal peacetime agencies came into being. In just 30 years, from 1900 to 1930, another third was established. President Roosevelt then used federal agencies extensively to implement New Deal programs. The amount of government authority wielded by these new agencies focused attention on competing policy issues.

Agencies are extensions of the executive branch of government that have the ability to make rules and interpret and enforce them, which combines executive, legislative, and judicial functions in a nonelected body. This structure seems to some to upset the balance of powers among the three branches of government. Others argue that the protection from tyranny comes, not from separating these powers, but from a system of supervision: The legislature supervises and the judiciary reviews administrative actions. Either way, agencies serve an important pragmatic need to move more quickly and in more detail than Congress can to deal with specific issues. Often, they are called on to apply specific scientific, technical, or administrative expertise to implement the broad policy decisions made by the legislative branch.

In 1938, President Roosevelt commissioned a full study of existing administrative procedures and recommendations for change. Before the committee report could be issued, Roosevelt vetoed a bill that would have placed administrative agencies directly under the courts, allowing judicial review of all agency decisions (the 1940 Walter-Logan bill). He indicated in his veto message that a report would soon address comprehensive regulation of federal administrative processes.

The 1941 report by the committee of lawyers, jurists, scholars, and administrators laid the groundwork for the APA. The purposes of the act are (1) to require agencies to keep the public informed of their organization, procedures, and rules; (2) to provide for public participation in the rule-making process; (3) to prescribe uniform standards for the conduct of [Page 19]formal rule making and adjudicatory proceedings; and (4) to restate the law of judicial review. An agency is defined as any authority of the United States, excluding Congress, the courts, and the governments of the territories, possessions, or District of Columbia. The APA sets out specific procedures to be followed when agencies make rules or enforce them (adjudication). Each process can be formal or informal. Informal rule making requires agencies to at least publish the proposed rule and allow interested parties to respond (notice and comment). Formal rule making is less common. It is quasi-legislative, requiring detailed hearings (rule making on the record). Similarly, formal adjudication is like a trial, presided over by an administrative law judge. Most agency decisions are subject to judicial review.

In 1990, two laws allowed agencies to use more collaborative methods of making and enforcing rules as supplements to the APA. Negotiated rule making (reg-neg) lets an agency meet with affected interest groups to reach a consensus on a proposed rule. Agencies were also authorized to employ alternative dispute resolution methods such as mediation and arbitration to resolve differences.

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