629 ESSAY MODERNIZING THE ADMINISTRATIVE PROCEDURE A.docx

629
ESSAY
MODERNIZING THE ADMINISTRATIVE
PROCEDURE ACT
CHRISTOPHER J. WALKER*
ABSTRACT
Despite dramatic changes in the modern regulatory state over
the last seven decades,
Westlaw reports that Congress has only amended the
Administrative Procedure Act sixteen
times since its enactment in 1946. The current political climate
may present an ideal op-
portunity for much-needed bipartisan legislative action. This
Essay introduces the Ameri-
can Bar Association’s 2016 consensus-driven recommendations
to reform the Administra-
tive Procedure Act and then concludes that the Portman–
Heitkamp Regulatory
Accountability Act of 2017, which incorporates seven of the
ABA’s nine recommenda-
tions, is the type of common-sense, bipartisan legislation
needed to modernize the APA.
* Associate Professor of Law, Michael E. Moritz College of
Law, The Ohio State
University. The author is a Public Member of the
Administrative Conference of the United

States and on the Governing Council for the American Bar
Association’s Section of Admin-
istrative Law and Regulatory Practice. These organizations
have recommended many of
the proposals discussed in this Essay. Similarly, the author
served as an Academic Fellow for
Senator Orrin Hatch from January to May 2017, during which
time he worked on regulato-
ry reform legislation, including the Regulatory Accountability
Act discussed herein. Indeed,
Senator Hatch is one of the four original co-sponsors of that
legislation. The views ex-
pressed, of course, are the author’s own. Thanks are due to
Evan Bernick, Kent Barnett,
Kati Kovacs, Ron Levin, Jeff Lubbers, and Michael McConnell,
as well as participants at
the Hoover Institution’s Reforming the Administrative State
Conference, for helpful com-
ments on prior drafts and to the editors of the Administrative
Law Review—Matt Goldstein in
particular—for their expert (and expedited) editorial assistance.
630 ADMINISTRATIVE LAW REVIEW [69:3
TABLE OF CONTENTS
Introduction
...............................................................................................
630
I. Evolution of the APA
.............................................................................. 633
II. ABA 2016 Resolution to Reform the APA

........................................... 638
A. Agency Disclosure of Data, Studies, and Information ........
639
B. The Agency Rulemaking Record ........................................
640
C. Minimum Comment Period ...............................................
641
D. Definition of “Rule”
............................................................ 642
E. Midnight Rules
.................................................................... 643
F. Retrospective Review ..........................................................
644
G. Unified Regulatory Agenda ................................................
645
H. Outmoded Rulemaking Exemptions ..................................
646
I. Post-Promulgation Notice-and-Comment Rulemaking .......
646
III. Regulatory Accountability Act of 2017
............................................... 648
A.
Adoption of ABA Recommendations ................................
650

B.
Codification of Executive Order 12,866 ............................
652
C.
Procedures for Major and High-Impact Rules .................. 656
D.
Codification of Agency Guidance ......................................
662
E.
Agency Public Advocacy Restrictions ................................
664
F.
Scope of Judicial Review ....................................................
665
Conclusion
...............................................................................................
.. 670
INTRODUCTION
The Administrative Procedure Act (APA) has set the default
rules that
govern the federal regulatory state since its enactment in 1946.1
Over the
decades, the APA has assumed quasi-constitutional status. In
1978, for in-
stance, then-Professor Antonin Scalia remarked that “the
Supreme Court

regarded the APA as a sort of superstatute, or subconstitution,
in the field of
administrative process: a basic framework that was not lightly
to be sup-
planted or embellished.”2 Indeed, Westlaw reports that
Congress has only
amended the APA sixteen times in more than seven decades, the
last time
1. See generally 5 U.S.C. §§ 551–59, 701–06 (2012).
2. Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit,
and the Supreme Court, 1978
SUP. CT. REV. 345, 363; see also Kathryn E. Kovacs,
Superstatute Theory and Administrative Com-
mon Law, 90 IND. L.J. 1207, 1209 (2015) (drawing on
WILLIAM N. ESKRIDGE, JR. & JOHN
FEREJOHN, A REPUBLIC OF STATUTES: THE NEW
AMERICAN CONSTITUTION (2010) to argue
that the Administrative Procedure Act (APA) is a “superstatute”
in the Eskridge–Ferejohn
sense).
2017] MODERNIZING THE ADMINISTRATIVE PROCEDURE
ACT 631
in 1996.3 The lack of substantial legislative reform of the APA
does not
mean it has failed to evolve. On the contrary, the Supreme
Court and the
lowers courts—with the D.C. Circuit playing a prominent role—
have de-
veloped a number of administrative common law doctrines that
have re-

shaped the APA’s default rules for agency action and judicial
review there-
of.
In recent years, however, there seems to have been more
interest in
Congress to reform the APA. During the Obama
Administration, Republi-
cans in Congress introduced a number of legislative proposals
that had the
potential to dramatically alter the administrative state.4 Now
that the Re-
publicans control both chambers of Congress and the White
House, one
reasonably might conclude that Republican calls for regulatory
reform
would disappear. That has not been the case. In January, for
instance,
House Republicans reintroduced and passed a suite of those
regulatory re-
form proposals in an omnibus bill.5 Within the first few days
of taking of-
fice, moreover, President Trump issued an ambitious executive
order that
requires federal agencies to identify two old regulations to
eliminate for eve-
ry new regulation proposed and to ensure that the net costs of
new regula-
tions are offset by the elimination of other costs.6 Similarly,
without a
Democratic President driving the regulatory state, Democrats in
Congress
should be more interested in implementing common-sense
regulatory re-
form to require federal agencies to be more deliberative,
transparent, and

effective. This is particularly true if the bipartisan legislation
would apply
to regulation and deregulation alike. The current political
climate thus may
present an ideal opportunity for bipartisan legislative action to
modernize
the APA.7
Last year, another legislative proposal received far less
attention but is of
critical importance to modernize the APA. The American Bar
Association
3. This figure is based on the Westlaw popular name table for
the APA. See Adminis-
trative Procedure Act, U.S.C.A. Popular Name Table for Acts of
Congress, Westlaw (data-
base updated 2016) [hereinafter, Westlaw Popular Name Table].
The amendments are dis-
cussed further in Part I infra.
4. For a compilation of regulatory reform bills introduced in
Congress since 2011, see
Memorandum from Administrative Conference of the United
States (ACUS) Interns to
Reeve T. Bull, Research Chief, ACUS (Jan. 30, 2017)
https://www.acus.gov/sites/default/
files/documents/Regulatory%20Reform%20Legislation%20Mem
o%202-13-2017.pdf.
5. Regulatory Accountability Act of 2017, H.R. 5, 115th Cong.
(2017).
6. See Exec. Order No. 13,771, 82 Fed. Reg. 9,339 (Jan. 30,
2017).
7. See Christopher J. Walker, The Regulatory Accountability
Act Is a Model of Bipartisan Reform,

REG. REV. (May 18, 2017),
https://www.theregreview.org/2017/05/18/walker-model-
bipartisan-reform/.
(ABA) House of Delegates passed Resolution 106B, which
recommends
nine reforms to the rulemaking provisions of the APA.8 As
discussed in
Part II, the ABA and others first suggested some of these
recommendations
over three decades earlier.9 Other recommendations are more
modern re-
sponses to deficiencies in the current APA.
In April, Senators Rob Portman (R-OH) and Heidi Heitkamp (D-
ND),
joined by Senators Orrin Hatch (R-UT) and Joe Manchin (D-
WV), intro-
duced a bipartisan regulatory reform bill entitled the Regulatory
Accounta-
bility Act of 2017.10 As discussed in Part III, this legislation
focuses on re-
forming the rulemaking process and incorporates parts of seven
of the nine
recommendations contained in the ABA’s 2016 resolution. If
enacted, the
Regulatory Accountability Act would constitute the most
significant reform
of the APA since its enactment in 1946.
In this Essay, I argue that now is the time for Congress to

modernize the
APA with comprehensive, bipartisan legislation. Part I briefly
recounts the
evolution of the APA, in both Congress and the judicial branch.
Part II
outlines the ABA’s suggested reforms. Part III then turns to the
various re-
forms included in the Portman–Heitkamp Regulatory
Accountability Act.
Although this Essay does not endeavor to reach a definitive
conclusion as to
every provision in the legislation, my general conclusion is that
the Port-
man–Heitkamp Regulatory Accountability Act is the type of
thoughtful,
common-sense, bipartisan legislation needed to modernize the
APA.11
8. ABA, House of Delegates Resolution 106B (adopted Feb. 8,
2016) [hereinafter ABA
Resolution 106B]. I serve on the Governing Council for the
ABA Section of Administrative
Law and Regulatory Practice, which developed Resolution 106B
and its accompanying re-
port. See Connor N. Raso, New ABA Administrative Law
Section Resolution on Improving the APA,
YALE J. ON REG: NOTICE & COMMENT (Dec. 19, 2015),
http://yalejreg.com/nc/new-aba-
administrative-law-section-resolution-on-improving-the-apa-by-
connor-raso/.
9. See ABA Section of Admin. Law & Regulatory Practice, The
12 ABA Recommendations
for Improved Procedures for Federal Agencies, 24 ADMIN. L.
REV. 389 (1972).

10. Regulatory Accountability Act of 2017, S. 951, 115th Cong.
(2017); see also Press
Release, Senator Rob Portman, Portman, Heitkamp Introduce
the Bipartisan Senate Regu-
latory Accountability Act (Apr. 26, 2017),
https://www.portman.senate.gov/public/index.cf
m/2017/4/portman-heitkamp-introduce-the-bipartisan-senate-
regulatory-accountability-
act. On May 17, 2017, the Senate Committee on Homeland
Security and Governmental
Affairs favorably reported an amended version of the legislation
out of committee. See Chris
Walker, Update on Portman–Heitkamp Regulatory
Accountability Act, YALE J. ON REG: NOTICE &
COMMENT (May 20, 2017), http://yalejreg.com/nc/update-on-
portman-heitkamp-
regulatory-accountability-act/.
11. To date, the Center for Progressive Reform—through James
Goodwin, Thomas
McGarity, Sidney Shapiro, and Rena Steinzor—has provided the
most thoughtful and
ACT 633
I. EVOLUTION OF THE APA
As many others have chronicled, the APA emerged in 1946 as a
“fierce
compromise” from a decade-long battle between those in favor
of and those
against the rise of the New Deal administrative state.12 The
APA sets the

default rules for agency action and judicial review thereof.13
The APA es-
tablishes detailed procedures for the two core means of agency
action—
rulemaking and adjudication—while recognizing that other
statutes may
provide for different forms of agency action.14 The APA
judicial review
standards apply broadly whenever Congress has made a
particular agency
action “reviewable by statute” and the action is “final agency
action for
which there is no other adequate remedy in a court.”15 The
statute that au-
thorizes an agency’s action, which is commonly referred to as
an agency’s
organic or governing statute, may modify the APA’s default
standards or
even prohibit judicial review altogether.16
Since the APA’s enactment in 1946, Westlaw reports that
Congress has
comprehensive critique of the Regulatory Accountability Act.
See James Goodwin, Anything
but Moderate: The Senate Regulatory Accountability Act of
2017, CPRBLOG (May 2, 2017),
http://www.progressivereform.org/CPRBlog.cfm?idBlog=B6B0
B417-E50E-5626-
FCB79F4E27E24532 (including link to a full analysis of their
criticisms).
12. George B. Shepherd, Fierce Compromise: The
Administrative Procedure Act Emerges from
New Deal Politics, 90 NW. U. L. REV. 1557, 1560 (1996); see
also, e.g., Walter Gellhorn, The

Administrative Procedure Act: The Beginnings, 72 VA. L. REV.
219, 219 (1986) (“The story begins
in May 1933, when the American Bar Association created a
Special Committee on Adminis-
trative Law under the chairmanship of Louis G. Caldwell, a
highly respected Washington
lawyer who had practiced ably in the telecommunications
field.”); Kovacs, supra note 2, at
1227 (“In sum, the APA of 1946 represented Congress’s
response to a conservative move-
ment and emerged from an enthusiastic Congress following
years ‘of public discussion and
official deliberation’ within and between Congress, the
Executive Branch, the ABA, and the
public.”).
13. See generally Administrative Procedure Act, 5 U.S.C. §§
551–59, 701–09 (2012).
14. See id. § 553 (rulemaking provisions); § 554 (adjudication
provisions); § 559 (recog-
nizing that other statutes could provide additional or different
agency procedures).
15. Id. § 704.
16. See id. § 559 (“Subsequent statute may not be held to
supersede or modify [the
APA] . . . except to the extent that it does so expressly.”); §
701(a) (noting that judicial review
under the APA is available “except to the extent that—(1)
statutes preclude judicial review;
or (2) agency action is committed to agency discretion by law”);
see also Stephanie Hoffer &
Christopher J. Walker, The Death of Tax Court Exceptionalism,
99 MINN. L. REV. 221, 243–50
(2014) (detailing further default judicial review standards and

how other statutes can depart
from those APA default standards).
only amended it sixteen times, most recently in 1996.17 In the
1940s, the
APA was amended five times to exempt from the APA
definition of “agen-
cy”—and thus from the APA framework entirely—any functions
conferred
by certain subsequent legislation.18 Similarly, two minor,
conforming
amendments were made in 1968 and 1978.19 The other nine
amendments
were more substantial.
In 1966, Congress enacted the Freedom of Information Act
(FOIA),
landmark legislation that amended the APA to require public
disclosure of
certain government information.20 In 1974, Congress enacted
the Privacy
Act, which amended FOIA to address records maintained on
individuals.21
The Privacy Act provisions were amended three more times in
the 1980s.22
17. This figure is based on the amendments listed in the
Westlaw popular name table
for the APA, each of which is discussed further in this Part. As
further noted in this Part,
Westlaw’s popular name table does not capture every
amendment to the Freedom of Infor-

mation Act and Privacy Act. See Westlaw Popular Name Table,
supra note 3. Nor does it
consider other statutory provisions in Title 5 of the U.S. Code
that deal with federal agen-
cies yet lie outside of the sections of Title 5 that codify the
original APA. See 5 U.S.C.
§§ 551–59, 701–06.
18. See Act of Aug. 8, 1946, ch. 870, Title III, § 302, 60 Stat.
918 (amending 5 U.S.C.
§ 551(a) to exclude functions conferred by the Veterans’
Emergency Housing Act of 1946);
Act of Aug. 10, 1946, ch. 951, Title VI, § 601, 60 Stat. 993
(same); Act of Mar. 31, 1947, ch.
30, § 6(a), 61 Stat. 37 (amending definition of agency in 5
U.S.C. § 551(a) to exclude func-
tions conferred by the Surplus Control Extension Act of 1947);
Act of June 30, 1947, ch.
163, Title II, § 210, 61 Stat. 201 (amending definition of agency
in 5 U.S.C. § 551(a) to ex-
clude functions conferred by the Housing Rent Act of 1947);
Act of Mar. 30, 1948, ch. 161,
Title III, § 301, 62 Stat. 99 (amending definition of agency in 5
U.S.C. § 551(a) to exclude
functions conferred by the 1948 amendments to the Housing and
Rent Act of 1947).
19. Act of Oct. 22, 1968, Pub. L. No. 90-623, § 1(1), 82 Stat.
1312 (amending 5 U.S.C.
§ 559 to insert “of this title”); Act of Oct. 13, 1978, Pub. L. No.
95-454, § 801(a)(3)(B)(iii), 92
Stat. 1222 (amending 5 U.S.C. § 559 to replace “5362” with
“5372”).
20. Freedom of Information Act of 1966, Pub. L. No. 89-487, 80
Stat. 250 (amending 5

U.S.C. § 552).
21. Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896
(codified at 5 U.S.C.
§ 552(a)); see also Act of Dec. 31, 1975, Pub. L. No. 94-183, §
2(2), 89 Stat. 1057 (amending 5
U.S.C. § 552a(g)(5) to replace “to the effective date of this
section” with “to September 27,
1975”). Strangely, the Westlaw popular name table for the APA
lists the latter minor
amendment but not the Privacy Act itself as an APA
amendment. That appears to be be-
cause that statute was not officially an amendment to the APA,
but only inserted into the
APA code section.
22. Debt Collection Act of 1982, Pub. L. No. 97-365, § 2, 96
Stat. 1749 (amending 5
U.S.C. § 552a); Congressional Reports Elimination Act of 1982,
Pub. L. No. 97-375, Title
II, § 201(a)–(b), 96 Stat. 1821 (amending § 552a(p)); Act of
Jan. 12, 1983, Pub. L. No. 97-
ACT 635
In 1996, Congress updated FOIA, mainly to provide public
access to in-
formation in an electronic format.23 (Although Westlaw does
not identify it
as an amendment to the APA, last year Congress enacted
additional legisla-
tion to further modernize FOIA.)24

In 1976, Congress enacted the Government in the Sunshine Act,
which
amended the APA to require open meetings and prohibited ex
parte com-
munications for certain agency actions.25 Also in 1976,
Congress amended
the judicial review provisions of the APA to include a waiver of
sovereign
immunity and clarify the form and venue of an APA civil
action.26 In 1978,
Congress changed the name of “hearing examiners” to
“administrative law
judges” and increased the number of those judges.27
In sum, Congress has only amended the APA sixteen times since
its en-
actment in 1946, yet even that number is misleading. There
have really
only been four—or perhaps five—significant statutory changes:
FOIA
(1966), the Privacy Act (1974), the Government in the Sunshine
Act (1976),
the waiver of sovereign immunity (1976), and, to a lesser
extent, the renam-
ing of administrative law judges (1978). Aside from
modernizing FOIA in
1996 (and again in 2016), Congress has made no substantial
change to the
APA in nearly forty years (since 1978).
The lack of significant legislative action does not mean the
APA has re-
mained constant. The Supreme Court and the lower courts—
with the
D.C. Circuit leading the way—have developed a wide variety of
“adminis-

trative common law” doctrines that further modify the APA.28
As Kenneth
452, § 2(a)(1), 96 Stat. 2478 (amending §§ 552a(b), 552a(m)).
23. Electronic Freedom of Information Act Amendments of
1996, Pub. L. No. 104-
231, §§ 3–11, 110 Stat. 3049 (amending 5 U.S.C. § 552).
24. See FOIA Improvement Act of 2016, Pub. L. No. 114-185,
130 Stat. 538 (amending
5 U.S.C. § 552).
25. Government in the Sunshine Act, Pub. L. No. 94-409, §§
3(a), 4, 5(b), 90 Stat. 1241
(adding 5 U.S.C. § 552b and § 557(d)(1) and conforming
language in §§ 551, 552, and 556).
26. Act of Oct. 21, 1976, Pub. L. No. 94-574, § 1, 90 Stat. 2721
(amending 5
U.S.C. §§ 702, 703). See generally Kathryn E. Kovacs,
Scalia’s Bargain, 77 OHIO ST. L.J. 1155
(2016) (providing a definitive account of legislative history
leading up to these amendments).
27. Act of Mar. 27, 1978, Pub. L. No. 95-251, §§ 2(a)(1),
2(b)(1)–(2), 92 Stat. 183
(amending 5 U.S.C. §§ 554, 556 and 559).
28. See, e.g., Gillian E. Metzger, Embracing Administrative
Common Law, 80 GEO. WASH. L.
REV. 1293, 1295 (2012) (defining and defending
“administrative common law” as “adminis-
trative law doctrines and requirements that are largely judicially
created, as opposed to those
specified by Congress, the President, or individual agencies”).

But see John F. Duffy, Adminis-
trative Common Law in Judicial Review, 77 TEX. L. REV. 113,
152 (1998) (criticizing the rise of
administrative common law and noting that it has been receding
somewhat).
Culp Davis put it in 1980, “Most administrative law is judge-
made law, and
most judge-made administrative law is administrative common
law.”29
As for the APA’s procedures for agency action, the Supreme
Court has
struck down most judicial efforts to graft on additional agency
procedures
not required by statute. Most famously, the Supreme Court held
in Vermont
Yankee Nuclear Power Corp. v. Natural Resources Defense
Council30 that “[a]gencies
are free to grant additional procedural rights in the exercise of
their discre-
tion, but reviewing courts are generally not free to impose them
if the agen-
cies have not chosen to grant them.”31 More recently, in Perez
v. Mortgage
Bankers Ass’n,32 the Court rejected another D.C. Circuit
administrative
common law doctrine—the requirement of notice-and-comment
rulemak-
ing to reverse certain prior agency guidance—and held that such
doctrine
“improperly imposes on agencies an obligation beyond the

‘maximum pro-
cedural requirements’ specified in the APA.”33
With respect to the APA’s judicial review provisions, however,
extensive
administrative common law remains on the books. That may
well be ex-
plained, as Thomas Merrill has documented, by the fact that the
APA em-
braces an appellate model of judicial review.34 Under this
model, courts
29. Kenneth Culp Davis, Administrative Common Law and the
Vermont Yankee Opinion,
1980 UTAH L. REV. 3, 3 (1980); cf. Jack M. Beermann,
Common Law and Statute Law in Admin-
istrative Law, 63 ADMIN. L. REV. 1, 4 (2011) (“The most that
one can confidently say today is
that administrative law contains elements that appear to be
highly statutorily focused along-
side elements in which courts exercise the discretion of a
common law court.”). See generally
Aaron L. Nielson, Visualizing Change in Administrative Law,
49 GA. L. REV. 757, 776–93 (2015)
(detailing how administrative law has changed since the APA).
30. 435 U.S. 519 (1978).
31. Id. at 524. See generally Gillian E. Metzger, The Story of
Vermont Yankee, in
ADMINISTRATIVE LAW STORIES 124, 149–50 (Peter L.
Strauss ed., 2006) (observing that the
Vermont Yankee “opinion is a masterpiece of obfuscation” on
what exactly were the procedures
that the agency should have implemented—including, perhaps,
cross-examination, discov-

ery, or a more robust record on which to evaluate the agency’s
reasoned decisionmaking);
Scalia, supra, note 2 at 356 (“The essential meaning of the
opinion below was unclear. In-
deed, the first step in the Supreme Court’s analysis had to be a
determination whether the
basis of decision was inadequacy of procedures or inadequacy
of record support. (The Su-
preme Court concluded that it was the former.)”).
32. 135 S. Ct. 1199 (2015).
33. Id. at 1206 (quoting Vermont Yankee, 435 U.S. at 524); see
Kathryn E. Kovacs, Pixelat-
ing Administrative Common Law in Perez v. Mortgage Bankers
Association, 125 YALE L.J.
FORUM 31, 42 (2015) (“The Court should take a step back
from the canvas of administrative
law to see the whole picture. If it had taken a step back in
Mortgage Bankers, it would have ex-
plained why Paralyzed Veterans doctrine conflicts with the APA
and ended its opinion there.”).
34. See Thomas W. Merrill, Article III, Agency Adjudication,
and the Origins of the Appellate Re-
ACT 637
review agency actions similar to how appellate courts review
trial court de-
cisions. The appellate review model in this context is based on
the record

in the prior proceeding, and the reviewing court does not engage
in inde-
pendent fact-finding. Likewise, the standard of review reflects
the compar-
ative expertise of the particular institutions, with more or less
deferential
review, depending on whether the issue is more factual or
legal.35
Unlike the intra-branch relationship between appellate and trial
courts,
the relationship between courts and agencies implicates
separation-of-
powers concerns. For instance, “The presumption that the
reviewing court
has superior competence to answer questions of law is rebutted
by the fact
that Congress often delegates law-elaboration authority first and
foremost
to the agency.”36 Administrative law’s appellate review model
has thus
evolved beyond the most natural reading of the APA’s text to
incorporate a
number of agency deference doctrines that reflect these
separation-of-
powers values.37 Chevron deference comes immediately to
mind.38 Auer def-
erence—the command that courts defer to agency interpretations
of their
own regulations—is another, perhaps even less textually
grounded defer-
ence doctrine.39
view Model of Administrative Law, 111 COLUM. L. REV. 939,
940 (2011).
35. See Christopher J. Walker, The Ordinary Remand Rule and

the Judicial Toolbox for Agency
Dialogue, 82 GEO. WASH. L. REV. 1553, 1554–57 (2014)
(further describing administrative
law’s appellate model).
36. Id. at 1555 (citing, inter alia, Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 983 (2005)).
37. See Christopher J. Walker, Avoiding Normative Canons in
the Review of Administrative Inter-
pretations of Law: A Brand X Doctrine of Constitutional
Avoidance, 64 ADMIN. L. REV. 139, 173–82
(2012) (exploring separation of powers concerns in the context
of Chevron deference and con-
stitutional avoidance).
38. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 842–43 (1984)
(instructing courts to defer to reasonable agency interpretations
of ambiguous provisions in
statutes the agency administers); see also Merrill, supra note 34,
at 999 (noting that, “in re-
sponse to the deregulation movement, the model was
sufficiently elastic to permit a further
modification in the appropriate division of authority in
resolving questions of law, most
prominently with the Chevron decision in 1984.”); see, e.g.,
Duffy, supra note 28, at 189–90
(“Yet although Chevron was born of the common-law method, a
battle is now being waged in
the courts between two conceptions of Chevron. One side
would continue the common law
reasoning of the Chevron opinion; the other would base the
doctrine on an interpretation of

specific statutory provisions . . . . The D.C. Circuit and Justice
Scalia are chief defenders of
the common-law version of Chevron, but they are losing the
battle.”).
39. See generally Christopher J. Walker, Attacking Auer and
Chevron Deference: A Literature
Review, 15 GEO. J.L. & PUB. POL’Y (forthcoming 2018) (on
file with author) (documenting
criticisms of both deference doctrines).
Administrative common law in judicial review has not been
limited to
judicial deference to agency legal interpretations. As John
Duffy noted, ex-
haustion of administrative remedies and ripeness are two other
areas histor-
ically rich in administrative common law.40 Nicholas Bagley
has identified
the presumption of reviewability as another.41 We also see it at
play with
respect to “hard look” review and judicial remedies in
administrative law,
such as the Chenery principle and remand without vacatur.42
Similarly,
Kathryn Kovacs has identified a number of other administrative
common
law doctrines that arguably contravene the APA’s plain text.43
This Essay does not endeavor to document, much less critique,
every in-
stance of administrative common law that has emerged since the

APA’s en-
actment in 1946. Instead, this discussion illustrates that the
APA has
evolved considerably over the last seven decades, just not due
to congres-
sional action. Indeed, one could reasonably argue that
administrative
common law has sprawled because of congressional inaction.
At the very
least, we can safely conclude that the judicial branch, not
Congress, has
played the predominant role in shaping the contours of the APA.
II. ABA 2016 RESOLUTION TO REFORM THE APA
As noted in the Introduction, the current …
Instruction
Below you will find 3 questions. Please remember in order to
get full credit for your answers:
1. Answer all parts of the question
2. Refer back to the text (Must have)
3. Provide an analysis
4. at least 350 words each
1. Although Executive agencies possess the executive, judicial,
and legislative processes that generally take care of most issues,
both the Congress and the Court find themselves involved in
complex matters. Describe the conditions under which the
Congress and the Courts can influence or even override final
regulatory decisions.
2. Identify what you consider the most important aspect of the
case you reviewed and what made you select it. Also discuss
whether or not you agreed it was a legitimate government

decision, and briefly describe the long term impact
My case: Goldberg v. Kelly, 397 U.S. 254 (1970)
Case Resource:
https://www.oyez.org/cases/1969/62
https://www.law.cornell.edu/supremecourt/text/397/254
https://supreme.justia.com/cases/federal/us/397/254/
3. Describe the APA, and the forces and conditions that brought
it about. What were some of the benefits that the APA was
expecting to bring to the field of Administrative law. Do you
believe the APA has met those expectations? What would be the
most important reform you would make in the APA and/or
regulatory process?
Refer to Rosenbloom text and Modernizing the Administrative
Procedure Act.
DAVID H. ROSENBLOOM
SECOND
EDITION
Administrative Law
for Public Managers
A Member of the Perseus Books Group
www.westviewpress.com
R

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N
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ADMINISTRATIVE LAW
FOR PUBLIC MANAGERS
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“Rosenbloom crafted a compelling narrative . . . Students
like Administrative Law for Public Managers because it is
straightforward and easy to understand. I teach a wide range
of students—mid-level managers to students with no work

experience—both are relieved that the content and examples
are easily digestible. It’s an excellent book!”
—Lorenda Ann Naylor, University of Baltimore
“This book presents a profound, as well as comprehensive,
knowledge base of administrative law.”
—Public Administration Review
Administrative Law for Public Managers is an accessible and
comprehensive guide to
the fundamentals of administrative law—why we have
administrative law, the constitutional
constraints on public administration, and administrative law’s
frameworks for rulemaking,
adjudication, enforcement, transparency, and judicial and
legislative review. Rosenbloom
explains administrative law from the perspective of
administrative practice, emphasizing
how various administrative law provisions promote their
underlying goal of improving the fit
between public administration and US democratic-
constitutionalism.
The second edition includes more coverage of state
administrative law, as well as an
expanded discussion of judicial review. It has also been updated
to include the major
statutes, court cases, executive orders, and other major
executive initiatives since 2003.
The addition of discussion questions makes this an even more
valuable resource for public
administration classrooms and students.
David H. Rosenbloom is Distinguished Professor of Public

Administration at American
University. A major contributor to the field and a Fellow in the
National Academy of Public
Administration, he has received numerous awards, including the
Gaus Award for exemplary
scholarship in political science and public administration, the
Waldo Award for outstanding
contributions to the literature and leadership of public
administration, the Levine Award
for excellence in public administration, and the Brownlow
Award for his book, Building
a Legislative-Centered Public Administration. He edited Public
Administration Review,
coedited the Policy Studies Journal, and is now on the editorial
boards of about twenty
academic journals.
Cover Image © Shutterstock
Cover Design: Miguel Santana & Wendy Halitzer
Administrative Law for Public Managers
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9780813348810-text.indd 2 5/14/14 4:09 PM
Administrative Law for
Public Managers
second edition

David H. Rosenbloom
American University
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Westview Press was founded in 1975 in Boulder, Colorado, by
notable publisher
and intellectual Fred Praeger. Westview Press continues to
publish scholarly titles
and high-quality undergraduate- and graduate-level textbooks in
core social science
disciplines. With books developed, written, and edited with the
needs of serious
nonfiction readers, professors, and students in mind, Westview
Press honors its long
history of publishing books that matter.
Copyright © 2015 by Westview Press
Published by Westview Press,
All rights reserved. Printed in the United States of America. No
part of this book may
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case of brief quotations embodied in critical articles and
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ext. 5000, or e-mail [email protected]
Library of Congress Cataloging-in-Publication Data
Rosenbloom, David H., author.
Administrative law for public managers / David H Rosenbloom.
-- Second edition.
pages cm
ISBN 978-0-8133-4881-0 (paperback) -- ISBN 978-0-8133-
4882-7 (e-book) 1.
Administrative law--United States. 2. Public administration--
United States. I. Title.
KF5402.R669 2014
342.73'06--dc23
2014015458
10 9 8 7 6 5 4 3 2 1
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v

Contents
Preface to the Second Edition xiii
1 What Is Administrative Law? 1
2 The Constitutional Context of US Public Administration 19
3 Administrative Rulemaking 63
4 Evidentiary Adjudication and Enforcement 89
5 Transparency 123
6 Judicial and Legislative Review of Administrative Action 151
7 Staying Current 185
References 195
Index 209
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vii
Detailed Table of Contents
Preface to the Second Edition xiii
1 What Is Administrative Law? 1

Introduction: What Is Administrative Law? 1
Why We Have Administrative Law Statutes: Delegation and
Discretion, 4
Delegation, 4
Discretion, 7
Administrative Decisionmaking, 8
Procedural and Substantive Review of Administrative
Decisions, 10
The Development of US Administrative Law, 12
Conclusion, 16
Additional Reading, 16
Discussion Questions, 16
2 The Constitutional Context of US Public Administration 19
The Separation of Powers, 22
Congress, 22
The President, 23
The Judiciary, 32
Federalism, 35
The Commerce Clause, 36
The Tenth Amendment, 40
The Spending Clause, 41
The Eleventh Amendment, 41
Individuals’ Constitutional Rights in Administrative
Encounters, 43
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viii Detailed Table of Contents
Relationships with Clients and Customers, 43
Equal Protection, 43
New Property and Procedural Due Process, 46
Unconstitutional Conditions, 47
Public Personnel Management, 48
First Amendment Rights, 49
Fourth Amendment Privacy, 51
Procedural Due Process, 51
Equal Protection, 52
Substantive Due Process Rights, 52
Relationships with Contractors, 53
Public Mental Health Patients, 54
Prisoners’ Constitutional Rights, 55
Street-Level Regulatory Encounters, 56
Fourth Amendment Constraints, 56
Equal Protection Constraints, 57
Public Administrators’ Liability for Constitutional Torts, 58
Conclusion, 60
3 Administrative Rulemaking 63
Introduction: Smoking Whitefish, 63
Rulemaking: Definitions and General Concerns, 64
Rulemaking Processes, 71
Limited or No Procedural Requirements, 71
Informal Rulemaking, 72

Formal Rulemaking, 74
Hybrid and Negotiated Rulemaking Processes, 75
Hybrid Rulemaking, 75
Negotiated Rulemaking, 76
Additional Features of the Idealized Legislative Model for
Rulemaking, 78
Representation: Advisory Committees, 78
Protecting Specific Interests and Values, 79
Executive Efforts to Influence Federal Agency Rulemaking, 82
Conclusion: The Philosopher’s Stone Versus the Bubble Effect,
85
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ixDetailed Table of Contents
4 Evidentiary Adjudication and Enforcement 89
Adjudicating Cinderella: A Case of Deceit, Abuse, and Due
Process, 89
What Is Evidentiary Administrative Adjudication? 91
Criticisms of Adjudication, 93
Legal Perspectives, 94
Administrative Perspectives, 95
Why Adjudicate? 99

Agency Convenience, 99
Advantages Presented by Incrementalism, 100
Conduct and Application Cases, 101
Equity and Compassion, 102
Procedural Due Process, 106
Caveat Estoppel, 107
Adjudicatory Hearings, 108
Presiding Officers, 110
Administrative Law Judges, 110
Other Presiding Officers, 113
Decisions and Appeals, 113
Alternative Dispute Resolution, 115
Enforcement, 117
Conclusion: Should Adjudication Be Reformed? 120
5 Transparency 123
Introduction: The Central Intelligence Agency’s Budget? What
Budget? 123
The Administrative Law Framework for Transparent
Government, 125
Public Reporting, 126
Freedom of Information, 128
The Freedom of Information Act, 128
The Presidential Records Act, 138
Privacy, 139
Open Meetings, 142

Whistle-Blower Protection, 145
Qui Tam, 148
Conclusion: An Opaque Fishbowl? 148
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x Detailed Table of Contents
6 Judicial and Legislative Review of Administrative Action 151
Introduction: The Drug Companies’ Acetaminophen, Salicylic
Acid, and Caffeine Headache, 151
Judicial Review of Administrative Action, 153
The Court System, 154
Reviewability, 159
Standing to Sue, 160
Mootness, 162
Ripeness, 163
Political Questions, 165
Timing, 165
Primary Jurisdiction, 165
Exhaustion of Administrative Remedies, 166
Finality, 167
Deference to State Courts, 167
The Scope of Judicial Review, 168
Agency Rules, 169

FOIA Requests, 172
Rulemaking Procedures, 172
Agencies’ Statutory Interpretations, 173
Agency Nonenforcement, 175
Discretionary Actions, 177
Adjudication, 178
Legislative Review of Administration, 178
Oversight by Committees and Subcommittees, 179
Reporting Requirements, 179
Research, Evaluation, Audit, and Investigation, 180
Sunset Legislation, 181
Casework, 181
Strategic Planning and Performance Reports, 182
Congressional Review Act, 182
Conclusion: Checks, Balances, and Federal Administration,
183
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xiDetailed Table of Contents
7 Staying Current 185
The Primary Function of US Administrative Law, 186
Constitutional Contractarianism, 186
Public Administrative Instrumentalism, 187
Periodicals and Websites, 190
Talk Administrative Law Talk, 191
Administrative Law Audits, 192

The Next Level, 192
References 195
Index 209
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xiii
Preface to the Second Edition
It may come as a surprise that the Encyclopedia of Life Support
Systems,
which is sponsored by United Nations Educational, Scientific,
and Cul-
tural Organization (UNESCO), contains an entry on
administrative law. I
was certainly surprised when asked to write it.1 I immediately
had a sci-
ence fiction inspired vision of earthlings boarding a spacecraft
clutching
the Encyclopedia in hand as they went to off to colonize a
distant planet.
Administrative law? Life support? At first, the connection
seemed dubious
at best. On reflection, however, I realized that the inclusion of
administra-
tive law is, in fact, necessary for life as we know it in modern,
complex

political systems. All governments in developed countries have
mature
administrative components. Public administration is the
institutional
means through which contemporary governments deliver public
services
and regulate aspects of economic, social, and political life.
Administrative
law is the regulatory law of public administration. It regulates
public ad-
ministrative activity. Without administrative law, public
agencies could go
about their business as they saw fit, perhaps routinely
emphasizing ad-
ministrative convenience and self-interest over other values and
the public
interest. In the United States, administrative law infuses public
adminis-
tration with democratic-constitutional values, including
stakeholder repre-
sentation, participation, transparency, fairness, accountability,
and limited
government intrusion on private activity. Life was once, and
still could be,
supported without it. However, other than perhaps some
administrators
themselves, few, if any, who know the history of US public
administration
would want to return to the days before the federal
Administrative Proce-
dure Act of 1946 went into effect.
1. See David H. Rosenbloom, “Administrative Law,” UNESCO-
EOLSS, http://www.eolss
.net/sample-chapters/c14/e1-34-05-07.pdf.

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xiv Preface to the Second Edition
To appreciate the importance of administrative law, one has to
bear in
mind that although students and scholars in the field of public
administra-
tion tend to view administration as providing valuable public
services, the
rest of the world doesn’t necessarily see it this way. Many in
legislatures,
small businesses, the health, medicine, industrial, and research
sectors, and
myriad other walks of life think of administration as
bureaucracy impos-
ing red tape and unwanted, often unnecessary, and even
seemingly bizarre
regulations. This is why administrative law books may contain
chapters
on “getting into court” and “staying in court” (W. Fox 2000).
Looking from
the outside in, administrative law constrains public
administration, guards
against abuses, and enables chief executives, legislatures, and
courts to
keep administrators in check. From the inside looking out,
administrative
law seeks to guide administrators and agencies in achieving
their objec-
tives within the framework of the nation’s democratic-
constitutional val-
ues and practices.

A solid grounding in administrative law is a prerequisite for
under-
standing a substantial amount about the internal administrative
processes
used on a daily basis by public agencies in the United States. As
with other
aspects of public administrative practice, it is better to learn
administra-
tive law in the classroom than to be bewildered by its
pervasiveness upon
entering a public-sector job. Students already working in the
public sector
will need no reminder of the importance of administrative law.
Neverthe-
less, they will benefit from gaining a systematic understanding
of how and
why it developed as it did.
Administrative law has such a major impact on what
administrators and
agencies do on a daily basis that it cannot be treated as
tangential or as a
specialization best left to lawyers. It needs to be integrated into
day-to-day
practice. For some administrators, such as those engaged in
rulemaking,
adjudication, and processing freedom-of-information requests,
administra-
tive law defines the fundamental structure and activity of their
jobs.
This book aims to make administrative law accessible to public
admin-
istration students, both those new to the subject and those
already in prac-
tice. The book focuses on the essentials that public managers

should know
about administrative law—why we have administrative law; the
broad
constitutional constraints on public administration;
administrative law’s
frameworks for rulemaking, adjudication, enforcement, and
transparency;
and the parameters of internal executive and external judicial
and legisla-
tive review of administrative action. The book views public
administration
from the perspectives of managing, organizing, and doing
administration
rather than lawyering. It is far more concerned with staying out
of court
than getting into it.
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xvPreface to the Second Edition
The discussion is organized around federal administrative law.
Where
appropriate, state approaches are noted as alternatives or
parallels to fed-
eral designs and requirements. After reading this book and
grappling with
the discussion questions at the end of each chapter, readers
should have
a firm grasp of federal administrative law and no difficulty
learning the
administrative law of any state.
Unlike most administrative law texts, the book neither contains

legal
cases nor devotes much attention to the development of case
law. Federal
court decisions are readily available on the Internet, and
instructors can se-
lect them flexibly to augment the text. Books dealing
comprehensively with
case law tend toward dysfunctional excess in general public
administrative
education, sometimes exceeding 1,000 pages of material that is
apt to go
largely unused and soon be forgotten. This book also differs
from others
by including a chapter on the constitutional context of US
public adminis-
tration, which explains the constitutional constructs and
doctrines within
which today’s public administration and administrative law
operate.
The book is intended for classroom use in three ways. First, as a
supple-
ment, it will efficiently cover the main dimensions of
administrative law
in introductory public administration classes and courses on
bureaucratic
politics or the political context of public management. Second,
it can serve
as a core text in public administration courses dealing with
administrative
law or the legal basis or environment of public administration.
As a core
text, it can be coupled with selected legal cases of the
instructor’s choice.
Third, in constitutional law courses, it can serve as a
supplement to explain

how abstract constitutional concerns such as delegations of
legislative au-
thority and procedural due process are transformed in concrete
action by
administrative agencies. It is unlikely that the book will be used
in law
school classes, though law students may find it refreshingly
concise and
helpful in explaining the political and administrative contexts in
which ad-
ministrative law is applied and the larger purposes it serves.
The challenge in writing the first edition was to explain the
essentials
of administrative law clearly and accurately, in nontechnical
terms, with
sufficient depth to provide readers with a sophisticated, lasting
under-
standing of the subject matter. That there is now a second
edition is testa-
ment to the success of that effort. The new edition thoroughly
updates the
previous one, adding discussion of new statutes and law cases,
as well as
developments during the first five years of Barack Obama’s
presidency.
It also fine-tunes the earlier discussion for clarity. I hope those
familiar
with the first edition will view this one as fresh and refreshing
and those
new to the text will find in it a welcome alternative to other
treatments of
administrative law.
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xvi Preface to the Second Edition
This edition continues to benefit from those acknowledged in
the earlier
one. I continue to extend my thanks to them. I would also like
to thank the
reviewers who gave such thoughtful feedback on the first
edition for this
revision, including Bradley Bjelke (California Lutheran
University), Lo-
renda Ann Naylor (University of Baltimore), Stephanie
Newbold (Ameri-
can University), Cindy Pressley (Stephen F. Austin State
University), Susan
E. Zinner (Indiana University Northwest), and others who
wished to re-
main anonymous. Special mention should go to my American
University
colleague Jeffrey Lubbers, who is always generous with his time
and pa-
tient in sharing his encyclopedic knowledge to explain the finer
points of
US federal administrative law to me.
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1
1
What Is Administrative Law?
Introduction: What Is Administrative Law?

Administrative law can be defined as the body of constitutional
provisions,
statutes, court decisions, executive orders, and other official
directives that,
first, (a) regulate the procedures agencies use in adjudicating,
rulemaking,
and adopting policies, (b) control the exercise of their authority
to enforce
laws and regulations, and (c) govern the extent to which
administration is
open to public scrutiny (i.e., transparent); and, second, provide
for review
of agency decisions, rules, orders, policies, actions, and other
aspects of
their operations. In short, administrative law is the regulatory
law of pub-
lic administration. It regulates how public administrative
agencies do what
they do and why, as well as their authority to do it. As such, it
is among
the most important aspects of modern government. We are all
affected by
administrative law in myriad ways in our daily lives.
Food may present the best example of why administrative law is
so
important. What did you eat today? Is that all? Well, probably
not. The
US Food and Drug Administration (FDA) regulates the
“maximum lev-
els of natural or unavoidable defects in food for human use that
present
no health hazard.” Known as the FDA “Rat Hair List,” these
regulations
specify the amount of rodent hair that can be in one hundred

grams of var-
ious foods such as apple butter, oregano, and peanut butter. The
list also
regulates the number of insect fragments and eggs, milligrams
of mamma-
lian excreta, maggots, and other unappetizing impurities in the
foods that
Americans consume every day (FDA, periodic). Chocolate can
have up to
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2 1. What Is Administrative Law?
sixty insect fragments per hundred grams (about two bars) and
one rodent
hair. On average, Americans eat 1.2 pounds of spider eggs and
2.5 pounds
of insect parts annually.1
The FDA is empowered to set such standards by law. It would
have
no power to do so without statutory authorization. However, it
does have
considerable discretion in deciding what levels are unavoidable
and do not
pose health hazards and what to do about products that exceed
the speci-
fied limits. An initial question is whether “unavoidable” should
be deter-
mined based on technology or economics. Although the agency
maintains
that some defects cannot be completely screened out, removing
from pizza

sauce more fly eggs and maggots than are allowed is probably
technolog-
ically feasible. Some producers may already do so. But is it
economically
feasible for the entire industry of large and small, relatively
financially
strong and weak firms to do so? Determining unavoidability
also involves
economic feasibility, which is related to the cost of producing
products,
their market price, and consumer demand for them. Some
balance between
purity and cost must be struck. The FDA seeks a desirable
trade-off by
testing products nationwide and determining the levels of
defects present
under the best production processes in use. This approach
assumes that
requiring investment to make the best practices even better is
economically
infeasible, or at least undesirable, and ultimately unnecessary
because,
while unappetizing, the acceptable levels are deemed safe to
consume.
Safety is a second issue. Clearly, if people are not getting sick
from the
allowable defect levels in regulated foods, then these product
levels are
probably safe. Yet it is possible that the cumulative effect of the
permit-
ted impurities over one’s lifetime takes a toll on health, even
though the
harm may not be traceable to them. It is also possible that the
defects af-
fect people differently based on age, allergies, and other

factors. No doubt,
aside from looking at best production practices, the FDA takes
the views
of health experts and research into account in considering where
to set and
maintain defect levels.
A third issue is transparency. As a consumer you may wonder if
the
FDA’s regulations provide adequate information and protection.
We are
all familiar with the nutrition labels on food products sold in
the United
States. Peanut butter lists calories, fat calories, total fat,
saturated fat, trans
fat, polyunsaturated fat, monounsaturated fat, cholesterol,
vitamins A
and C, sodium, total carbohydrates, fiber, sugars, protein,
calcium, and
iron. The average number of insect fragments and rodent hairs
is missing.
1. Data from
http://www.spydersden.worldpress.com/2010/page/78;
www.chacha.com/
question/does-the-average-american-really-consume-1.2-
pounds-of-spider-eggs-a-year-and
-eat-2.5-pounds-of-insect-parts-a-year.
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3Introduction: What Is Administrative Law?
Should this be identified? Who should decide—Congress, which

is elected
by “We the People”; an administrative agency like the FDA,
which is
not; or the food industry itself? If it were decided to require
information
about “unavoidable defects,” would it be sufficient to indicate
compliance
with FDA allowable levels? Should that level be specified on
the product?
Should the average number of various impurities be indicated?
If Congress
makes such decisions, it will hold hearings and receive
testimony from
representatives of the food industry such as the Snack Food
Association,
Pizza Industry Council, US Potato Board, National
Confectioners’ Associ-
ation, Whole Grains Council, and other groups. If an agency
makes these
decisions, how should its decisionmaking process be structured?
Should
it be open to input from the same kinds of stakeholders, and if
so, how?
Regardless of where the decision is made, what role, if any,
should health
experts, hospitals and other care providers, health insurance
companies,
and consumer advocates play?
Finally, how should the FDA’s defect levels be enforced?
Should the FDA
test products already in the marketplace, inspect production
facilities, or
both? If a firm’s product exceeds the allowable defect levels,
what steps
should be taken? What opportunities should the firm have to

contest the
FDA’s finding? Such questions are the stuff of administrative
law. Although
they focus largely on process, as they suggest, process can
affect substance.
Administrative policymaking often involves a wide range of
consider-
ations and complex trade-offs like those involved in
establishing the FDA’s
Rat Hair List. Administrators make a great number of decisions
that di-
rectly affect the health, safety, and welfare of the population or
sections
of it. They have to address difficult issues regarding
transportation, envi-
ronmental protection, economic practices, labor relations, and
much, much
more. Their decisions are of fundamental consequence to the
nation’s qual-
ity of life and attract a great deal of political and media
attention. Equally
important to our constitutional democracy, though generally
less visible
and interesting to the public, is how administrators should make
and en-
force their decisions.
The how rather than the what is the essence of administrative
law. What
steps should an administrator and an agency take before
regulating impuri-
ties in food? What values should be weighed and how heavily?
How much
evidence should be adduced to support agencies’ conclusions?
How open to

public scrutiny and participation should decisionmaking be?
How should
the costs and benefits of agency action be weighed? How can an
agency
assess the impact of greater transparency on consumers’
behavior? Would
including the FDA’s allowable defect levels on nutrition labels
change
Americans’ diets, and if so, how—toward more or less healthful
diets?
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LuTing
Highlight
4 1. What Is Administrative Law?
Additional administrative law questions focus on accountability
and re-
view of agency decisionmaking. How should the FDA be held
accountable
for whatever levels it sets? Should its standards be subject to
review by
Congress and/or a unit within the executive branch, such as the
Office
of Management and Budget (OMB)? Presuming that one or more
of its
standards is challenged in court, should the FDA have to show
statistically
that its maximum levels are safe, that lower levels would not be
safer, or
that the defects are unavoidable? Should the data relied on to
reach its

decisions be available to the public? Concerns like these are the
crux of
administrative law, and they are of recurring importance.
For the most part, administrative law is generic in the sense that
one
size fits all. Although there are apt to be exceptions, it more or
less applies
across the board to administrative agencies within a
government, as op-
posed to being tailored to match each agency’s mission
individually. The
phrase “administrative law,” as used in the United States, makes
an im-
perfect distinction between the procedures agencies use to make
rules, set
standards, and adjudicate and the substantive content produced
by those
actions. In other words, how the FDA sets maximum defect
levels is a mat-
ter of administrative law, whereas the levels themselves are not.
Similarly,
how the Environmental Protection Agency (EPA) makes rules
for clean air
and water is a matter of administrative law; the actual
regulations, such as
parts per billion of arsenic allowed in groundwater, are not. The
distinc-
tion is imperfect because administrative law provides for
judicial review
of agencies’ rules, standards, and adjudicatory decisions, which
may be
found unlawful if their content is irrational or their scope is
beyond the
law. Moreover, administrative law, with the exception of some
forms of

adjudication, is not concerned with agency decisions regarding
internal
personnel, organizational, budgetary, outsourcing, and similar
administra-
tive matters. All levels of government in the …

629 ESSAY MODERNIZING THE ADMINISTRATIVE PROCEDURE A.docx

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