US Administrative Law
Foundations of US Administrative Law
US administrative law governs the legal framework within which federal administrative agencies operate. The field addresses the exercise of delegated legislative and judicial authority by executive-branch agencies and independent regulatory commissions, reconciling administrative expertise with constitutional principles of separation of powers, due process, and democratic accountability. The foundational statute is the Administrative Procedure Act (APA) , enacted in 1946 and codified at 5 USC §§ 551-559 and 701-706, which establishes uniform procedural requirements for rulemaking, adjudication, and judicial review of agency action.
The APA emerged from the New Deal expansion of the federal administrative state. The Attorney General’s Committee on Administrative Procedure studied agency practices and produced a report that formed the basis for the legislation. The APA codified minimum procedural requirements while preserving agency flexibility, reflecting a compromise between those who sought rigorous procedural constraints on agency discretion and those who valued administrative flexibility to respond to changing regulatory conditions.
Rulemaking: Formal and Informal
A central distinction in US administrative law is between formal and informal rulemaking. Informal rulemaking — the notice-and-comment procedure under § 553 of the APA — is the most common method by which agencies issue binding regulations. The process requires the agency to publish a notice of proposed rulemaking in the Federal Register, provide an opportunity for public comment, consider the comments received, and publish a final rule accompanied by a statement of basis and purpose. The agency must provide a reasoned response to significant comments, demonstrating that it has considered relevant data and alternative approaches.
Section 553(c) requires that after considering the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. This requirement, though modest on its face, has been interpreted by courts to demand that agencies engage in reasoned decision-making, explaining the factual and policy bases for their choices. The hard look doctrine, articulated most prominently in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co. (1983), requires courts to conduct a searching review of agency reasoning, examining whether the agency considered all relevant factors, identified the alternatives available, and provided a satisfactory explanation for rejecting them.
The APA exempts certain categories from notice-and-comment requirements: interpretive rules, general statements of policy, and rules of agency organization, procedure, or practice. Interpretive rules clarify ambiguous statutory language without creating new legal obligations. The distinction between legislative rules (which have binding legal effect) and interpretive rules (which merely explain) is a contested boundary in administrative law, as agencies may attempt to circumvent notice-and-comment requirements by characterizing binding rules as interpretive.
Formal rulemaking, governed by §§ 556 and 557, requires trial-type hearings with cross-examination and is employed only when a specific statute requires decisions on the record after opportunity for an agency hearing. This procedure is rare because of its resource intensity. The distinction between formal and informal rulemaking reflects the APA’s recognition that different regulatory contexts demand different procedural rigor.
Rulemaking Distinguished from Adjudication
The APA provides distinct procedural frameworks for rulemaking and adjudication, but the boundary between them has been a persistent source of doctrinal difficulty. In SEC v. Chenery Corp. (1943) — Chenery I — the Supreme Court held that an agency must conform to the procedural requirements Congress prescribed for each type of action; an agency cannot engage in ad hoc adjudication to announce a new rule of conduct that should have been adopted through notice-and-comment rulemaking. However, Chenery II (1947) recognized that agencies may proceed either by rulemaking or by case-by-case adjudication, provided they offer reasoned explanations for their choices.
The Chenery doctrine gives agencies significant flexibility in choosing between rulemaking and adjudication, but requires that the choice be reasoned and consistent with the demands of fairness. If an agency changes a long-standing policy through adjudication without adequate explanation, a reviewing court may find the action arbitrary and capricious. The Chenery principle also requires that reviewing courts evaluate agency decisions on the grounds articulated by the agency itself, not on post hoc rationalizations offered by agency counsel.
In Heckler v. Chaney (1985), the Supreme Court held that an agency’s decision not to enforce the law is presumptively unreviewable under the APA. The Court reasoned that non-enforcement decisions involve complicated judgments about resource allocation and enforcement priorities that are better suited to agency discretion. This presumption of non-reviewability can be rebutted if the governing statute provides meaningful standards for enforcement decisions, but the Chaney presumption has proved robust, insulating a wide range of enforcement choices from judicial oversight.
Judicial Review of Agency Action
Section 706 of the APA establishes the standards of review that courts apply to agency action. The arbitrary and capricious standard under § 706(2)(A) is the most commonly invoked standard for informal rulemaking and informal adjudication. Under this standard, courts ask whether the agency examined the relevant data, articulated a rational connection between the facts found and the choice made, and considered important aspects of the problem. The State Farm “hard look” formulation requires that the agency’s explanation be reasonable and that the agency not have relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that runs counter to the evidence, or made a decision that is so implausible that it cannot be ascribed to a difference in view or the product of agency expertise.
The substantial evidence standard under § 706(2)(E) applies to formal adjudication and formal rulemaking. It requires that agency factual findings be supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Though theoretically more demanding than the arbitrary and capricious standard, in practice the two standards have converged, and courts apply both with varying intensity depending on the context.
The Chevron Doctrine and Its Overruling
From 1984 to 2024, the Chevron doctrine dominated judicial review of agency statutory interpretations. In Chevron U.S.A. v. Natural Resources Defense Council (1984), the Supreme Court established a two-step framework: at step one, courts determine whether Congress has directly addressed the precise question at issue using the traditional tools of statutory construction; if the statute is ambiguous, at step two, courts defer to the agency’s interpretation provided it is based on a permissible construction of the statute. Chevron deference applied only when the agency acted pursuant to delegated authority and when the interpretation carried the force of law through notice-and-comment rulemaking or formal adjudication.
The major questions doctrine emerged as a significant limitation on Chevron deference in cases involving agency assertions of authority over matters of economic or political significance. In West Virginia v. EPA (2022), the Supreme Court held that in extraordinary cases where the agency claims to decide a major question — one of vast economic and political significance — the agency must point to clear congressional authorization for its action. The Court emphasized that Congress does not hide elephants in mouseholes and that agencies cannot rely on vague or ambiguous statutory language to support transformative expansions of their regulatory authority.
In Loper Bright Enterprises v. Raimondo (2024), the Supreme Court overruled Chevron, holding that the APA requires courts to exercise independent judgment in interpreting statutes. The Court reasoned that Chevron deference was inconsistent with the APA’s command that reviewing courts decide all relevant questions of law and interpret constitutional and statutory provisions. Following Loper Bright, agency interpretations are entitled to respect only to the extent they have the power to persuade under the Skidmore standard, which considers the thoroughness, validity, consistency, and persuasiveness of the agency’s reasoning.
Institutional Architecture
The Administrative Conference of the United States (ACUS) is an independent federal agency that studies administrative procedures and recommends improvements to Congress, the President, and agencies. ACUS brings together government officials, academics, and private practitioners to develop consensus-based recommendations for enhancing the fairness, efficiency, and transparency of administrative processes.
The Office of Information and Regulatory Affairs (OIRA) , within the Office of Management and Budget, conducts executive order review of significant regulatory actions. Under Executive Orders 12866 and 13563, OIRA reviews proposed and final rules to ensure that their benefits justify their costs, that they are consistent with presidential priorities, and that they avoid conflicts with other agency actions. OIRA review has become a central mechanism for presidential control of the regulatory state, allowing the White House to coordinate and constrain agency rulemaking.
Independent regulatory agencies — including the Securities and Exchange Commission (SEC), the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and the National Labor Relations Board (NLRB) — occupy a hybrid constitutional status. These agencies exercise quasi-legislative and quasi-judicial authority free from direct presidential oversight, with commissioners removable only for cause. In Humphrey’s Executor v. United States (1935), the Supreme Court upheld the constitutionality of independent agencies, distinguishing them from purely executive officers subject to at-will presidential removal. The constitutional status of independent agencies remains contested, with some justices arguing that they violate Article II’s vesting of executive power in the President.