Administrative Procedure Act

The federal Administrative Procedure Act (APA) of 1946 governs the way in which administrative agencies of the United States federal government may propose and establish regulations. The APA also sets up a process of direct review for agency decisions by federal courts. As such, it is an important source of authority within federal American administrative law. The APA applies to both independent agencies and executive department agencies, and their subdivisions. 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 551.

Historical background: growth of federal administrative agencies

The APA was enacted during a period of expanding federal governmental power, following the Great Depression and World War II. Beginning in 1933, Roosevelt and the Democratic Congress enacted several statutes that created new federal agencies. The statutes were part of Roosevelt’s New Deal legislative plan, designed to deliver the United States from the social and economic hardship of the Great Depression.

In a law journal article on the history of the APA, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Northwestern University Law Review 1557 (1996), 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. (Ibid at 1562.) 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.” (Ibid at 1559.)

A 1946 U.S. House of Representatives Report discusses the ten year period of "painstaking and detailed study and drafting" that went into the APA.(See, Administrative Procedure Act, Report of the House Judiciary Committee, No. 1989, 79th Congress, 1946, at 8)("House Report").) 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. (Ibid.) As the result of 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 Attorney General Frank Murphy to form a committee to investigate practices and procedures in American administrative law, and suggest improvements. That committee's report, The Final Report of the Attorney General's Committee on Administrative Procedure (Senate Document No. 8, 77th Congress, First Session, 1941)("Final Report")(see link to pdf of the Final Report's text below, under the “External Links” heading) 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. (Ibid at 7.) The Final Report applied that definition to the largest units of the federal government, and came up with "nineteen executive departments and eighteen independent agencies." (Ibid.) But, 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 U.S. government 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 in the period prior to the Civil War. In the period 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. 18 of these were created during the 1930's, from statutes enacted as part of Roosevelt’s New Deal legislative agenda. The Final Report made several recommendations about standardizing administrative procedures, but Congress delayed action because the U.S. entered World War Two.

Basic purposes of the APA

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, formal and informal.(Ibid.) Formal adjudication involved a trial-like hearing with witness testimony, a written record and a final decision. With 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 can 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.

According to the Attorney General's Manual on the Administrative Procedure Act (1947)(see link to pdf of the Manual's text below, under the “External Links” heading), 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.

Structure of the APA

See also: Rulemaking NPRM