Federal agencies publish tens of thousands of pages of rules and notices in the Federal Register each year, and they decide a great many cases. Administrative law governs how they do it. It brings together the sources of law, the separation of powers and judicial review of agency interpretations.
Key idea
Agencies make rules, adjudicate cases and enforce laws under powers granted by statutes. The Administrative Procedure Act (1946) requires notice-and-comment rulemaking for most rules and lets courts set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
Why it works
Congress cannot write every technical detail, so it passes statutes that set goals and delegate authority to agencies. Under the nondelegation doctrine, Congress must give an "intelligible principle" to guide the agency (J.W. Hampton, Jr. & Co. v. United States, 1928). The APA, signed June 11, 1946, sets fair procedures. For most rules (called legislative rules) the agency must publish notice, take comments and explain the final rule, and such rules have the force of law. Interpretive rules and policy statements, which explain how the agency reads the law, are exempt from notice and comment and do not bind the public the same way. Agencies also decide cases, often before administrative law judges. All three branches check the process: courts review it under the APA, the President directs most agencies, and Congress funds them and can overturn rules by passing a new law, including under the Congressional Review Act (1996).
Worked example: Arbitrary and capricious
An agency withdraws a safety rule. Its notice gives no reason and does not respond to evidence in the record that the rule saved lives. A group sues. What is the likely result?
- Under the APA a court sets aside action that is arbitrary and capricious.
- Courts require an agency to examine the relevant data and give a reasoned explanation, including for changing course.
- No reason and no response to the evidence fails that test.
Answer: The court will likely set the withdrawal aside and send it back to the agency.
Worked example: Which kind of rule?
An agency posts a guidance document explaining how it reads an existing regulation. It took no public comments. Is the guidance invalid for skipping notice and comment?
- Notice and comment is required for legislative rules that bind the public.
- Interpretive guidance is exempt.
- But because it skipped the process, it does not carry the force of law the way a legislative rule does.
Answer: No, it is not invalid, but it does not bind the public like a legislative rule.
Common mistake
Thinking agency rules are only guidance. Legislative rules made through proper procedures under a valid statute have the force of law: violating them can bring fines or other penalties. Check: was the rule issued through notice and comment under authority a statute grants? If so, it binds like a statute.
This is an educational course, not legal advice.