Administrative Procedure as an Internal Check

Where to look online for regulations, notices, etc.


Development of administrative procedure

Before late 1800s: narrow delegation. Then, rapid expansion of federal government functions, growth of administrative bureaucracy.

Source on development of APA:
Shepherd, George B. “Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics.” Northwestern University Law Review, vol. 90, no. 4, 1995-1996, p. 1557-1683.

Efforts at rationalization and control, from 1920s

From beginning some proposals were ideological (against the administration in power), others more “good government” in nature with bipartisan support.

Concerns included

  • lack of systematic body of existing regulatory rules
  • combination of quasi-legislative, -judicial, and –prosecutorial functions in single agencies; “judge in his own case”
  • certain administrative policies in particular, such as prospective business licensing policies that could be undertaken under NIRA and AAA, and prospective favoring of labor by NLRB.
  • ABA, as primarily trial lawyers, objected to processes that looked more like lobbying than conventional legal advocacy, and hence depreciated their role.

1st major proposal: Sen. George W. Norris proposal 1929: new U.S. Administrative Court to subsume

  • Court of Claims
  • Court of Customs Appeals
  • Board of Tax Appeals
  • Court of Customs and Patent Appeals
  • certain jurisdictional areas of US District Courts and the Supreme Court of DC

Similar proposals in early New Deal; ABA worked on recommendations for agency procedural reforms.

Only actual statute: Federal Register Act of 1935, establishing the Federal Register and requiring advance public notice and publication of

  • executive orders and proclamations
  • docs of general applicability and legal effect
  • any rule imposing a penalty
  • anything else Congress orders published.

Created admin structure for production, archiving, and dissemination. Amended 1937 to add Code of Federal Regulations.

Source on Federal Register: Amy Bunk, “Federal Register 101.” US Coast Guard Proceedings Vol. 67 No. 1 (Spring 2010), pp. 55-57. Ms. Bunk was Director of Legal Affairs and Policy, Office of the Federal Register.

    Stronger constraints proposed beginning 1937

    Following FDR’s 1936 victory and the 1937 “switch in time”

    ABA 1937 Procedural Reform Proposal

    • controlled agency adjudication—Anyone "aggrieved" by an agency decision could demand a hearing from a special new 3-mbr board within the agency. Boards not to include members who had helped draft the rule in question; must include at least one lawyer; adjudications be formal hearings with full written record.
    • controls on rule-making: to take place only after notice and public hearings (a more restrictive version of them than APA later required); require publication in Federal Register and immediate review in Court of Claims, prior to any case arising.

    Separately, liberals also proposed administrative reorganization. FDR proposal from Brownlow Commission report:

    • consolidate >100 agencies, giving pres greater control
    • authority to reorganize further whenever needed.
    • FDR tried to sell this via the pres control aspect: “The plain fact is that the present organization and equipment of the executive branch of the Government defeats the constitutional intent that there be a single responsible Chief Executive to coordinate and manage the departments and activities in accordance with the laws enacted by the Congress. Under these conditions the Government cannot be thoroughly effective in working, under popular control, for the common good.” (1584)
    • (Defeated in early 1938)

    Walter-Logan Bill 1939-40 and its descendants

    Represented peak of support for strict administrative procedural reform. Procedural reforms above, plus

    • Broad jurisdiction to DC Court of Appeals, and
    • imposed “substantial evidence” standard, requiring agencies to build a record justifying their decisions
    • exempted many pre-1933 agencies.
    • (Passed by both houses, vetoed by FDR in 1940)

    After wartime delays, tried similar reforms adjusting to get admin acceptance; innovation of informal rulemaking. Finally got APA 1946.

    APA requirements


    Informal rulemaking (most major rulemaking):

    • notice-and-comment process
    • publication of final rule with explanation of “basis and purpose” and response to summary of “significant” comments
    • reasons draw on evidence such as data, experience, hearings (as well as comments)
    • explain and justify interpretation of statutory basis and use of previous rules
    • takes effect after a waiting period (typically 30 days)
    • judicial review: reject only if agency decision is “arbitrary and capricious”

    Formal rulemaking (when required by separate statute):

    • formal hearing process with trial-like procedures
    • presided over by an Administrative Law Judge or other high legislative official
    • prohibit ex parte communication (lobbying of officials)
    • decision explaining consideration of whole hearing record and supported by the evidence presented
    • judicial review: reject if not supported by “substantial evidence”

    Direct Final rulemaking:

    • takes effective immediately with end of comment period (if no adverse comment)
    • for rules expected to be non-controversial

    Negotiated rulemaking:

    • Assemble committee of affected parties (under Federal Advisory Committes Act)
    • If consensus reached, report and adopt corresponding rule
    • Not binding on the agency

    Wholly exempt:

    • Military or foreign affairs decisions (executive powers)
    • Management of public properties, grants, etc.

    Other exceptions to notice-and-comment requirements:

    • non-legislative: interpretive or general statements (such as “guidance”)—informational rather than binding: may omit comment period and take effect immediately
    • “good cause”: when agency finds regular procedure “impracticable, unnecessary, or contrary to the public interest” (liable to tough review)
    • Rule that “grants or recognizes an exemption or relieves a restriction”: takes effect immediately

    Amending or repealing a rule

    • This is just more rulemaking, subject to all requirements
    • Exception: if designed to “relieve a restriction”
    • Examples in Sanger-Katz article: environmental deregulation; allowing KY Medicaid work requirements

    Some ambiguous situations, to which APA may not apply:

    • Rules for making rules
      • Trump cost-offset rule for new regulations (EO 13771)
      • Centralized rulemaking review provisions, beginning with cost-benefit review by Office of Information and Regulatory Affairs (OIRA) under Reagan
    • Presidential decision? Franklin v. Massachusetts (1993) held that APA wasn’t explicitly applied to president’s own decisions & hence should be assumed not to apply.
    • Amending a regulation by executive order?
      • Example: Trump’s order (13843) excepting ALJs from certain Civil Service protections.
      • An implementing agency (here, Office of Personnel Mgmt) may nevertheless be subject to APA-based controls.

    Other judicial review considerations, beyond APA

    • Chevron deference. An agency’s interpretation of statute is accepted by court if permissible (that is, not unconstitutional or violating some other existing law). (Chevron v. NRDC 1984)
    • Auer deference. An agency’s interpretation of its own earlier regulation is upheld unless plainly erroneous or inconsistent with the regulation. (Auer v. Robbins 1997)


    Administrative history of DACA

    Legislative inaction

    Development, Relief, and Education for Alien Minors (“DREAM”) Act

    • first introduced in Senate 2001
    • failed due to Senate filibuster 2007
    • failed again due to filibuster 2011

    Original DACA program

    Formalized in a memo from DHS Sec. Janet Napolitano -- no Executive Order, no agency rule.

    • DHS memo, "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children," June 15, 2012.
    • Noticed in Federal Register Vol. 78, No. 36 (Feb. 22, 2013), p. 12341 (about 2/3-way down the page).
      • Among a collection of actions requiring clearance from OMB under the Paperwork Reduction Act (PRA)
      • Says it was approved Aug. 14, 2012 -- this is the filing date of the first PRA approval filing (see below), with publication date Aug. 16.
    • Thereafter, DACA appears from time to time in the Federal Register in connection with tangential matters
      • qualifications about how other USCIS deferral programs will be implemented when they touch on DACA-eligible people
      • OMB approval of forms
        • At the Federal Register online type “Form I-821D” (without quotes) into the search box -- retrieves 18 documents from 2012-2019 concerning that form and changes pertaining to its use.
      • changes in application fees for renewal and for employment authorization
        • A currently proposed rule from DHS would leave initial DACA filings free, maintain the fee for renewal (every 2 yrs) at $275, and raise the fee for employment authorization from $495 to $765.

    Issues in court and legislative challenges

    Political challenges to original DACA

    • Only one immediate court challenge to the original DACA (by 10 ICE agents), dismissed for lack of standing.
    • Criticized by Republicans as overstepping executive powers
      • March 2014 a bipartisan "Gang of Eight" Senators in proposed a comprehensive immigration reform bill that would replace DACA.
      • June 9, 2014 House Whip Carthy announced there were enough votes to pass the House;
      • June 10 House Majority Leader Cantor lost his primary election to an anti-immigration challenger;
      • June 30 Speaker Boehner announced he would not bring the bill to a vote.

    Nov 2014, again via a memo from DHS Sec. Jeh Johnson, the administration expanded the applicability of DACA and granted “deferred action” to their parents in a new plan called DAPA ("Deferred Action for Parents of Americans and Lawful Permanent Residents").

    • Important court challenge: Texas v. U.S.
      • U.S. District Court granted injunction, nationwide in application, postponing implementation of extended DACA / DAPA: Texas v. U.S. 86 F.Supp.3d 591 (S.D. Tex. 2015); Upheld on appeal: 809 F.3d 134 (5th Circuit, 2015)
        • On APA procedural grounds: DHS Sec. Johnson's memo will likely be ruled to have required public notice-and-comment procedures.
        • On APA substantive grounds: a full trial will likely result in rejection of the policy even on the weak Chevron deference crieria, because as an interpretation of DHS powers under the Immigration and Nationalities Act (INA) it contradicts other parts of the Act specifying precise conditions for granting waivers to undocumented aliens.
      • 8-member Supreme Court deadlocked June 2016 deadlocked, leaving the injunction in place.
    • With the Trump administration's announced intention to rescind the programs, all parties agreed to dismissal of the original Texas v. U.S. case, so it was never tried on the merits.

    Trump administration issued another memo to rescind the entire program: both extended DACA / DAPA and the original DACA. This was challenged in numerous lawsuits across four Appeals Court circuits; the usual identifying name for this collection of courses (now combined for Supreme Court consideration) is Regents v. DHS decision (9th Circuit). Oral arguments took place in November 2019, and a decision is expected early next year.


    This page compiled by Randall Calvert © 2019. Email comments and questions to calvert at wustl