Compendium

Administrative Law — Agency Authority, Rulemaking, Judicial Review, APA

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Administrative Law — Agency Authority, Rulemaking, Judicial Review, APA

1. Definition and Role

Administrative law governs the authority, procedures, and judicial oversight of federal and state administrative agencies.

These are the bodies that translate broad statutory directives into specific, enforceable rules and decisions.

It is sometimes called the law of the “fourth branch” of government.

Roughly 430 federal agencies, plus a comparable count of state agencies in each state, collectively exercise quasi-legislative, quasi-executive, and quasi-judicial powers that touch nearly every commercial transaction, civil liberty, and regulated activity in the United States.

The discipline asks three recurring questions:

  1. What authority does an agency possess, and where does it come from?
  2. What procedures must the agency follow when exercising that authority?
  3. Under what circumstances may a court second-guess agency action?

The post-2022 Supreme Court has substantially reshaped the answers to all three.

This note covers:

  • The constitutional and statutory foundations.
  • The taxonomy of federal agencies.
  • The agency toolbox — rulemaking, adjudication, enforcement, licensing, guidance.
  • Standards of judicial review, including the post-Chevron world.
  • Structural constitutional doctrines — non-delegation, appointments, removal.
  • APA reviewability doctrines — final action, standing, ripeness, mootness, exhaustion.
  • The 2022-2024 high-profile cases that redrew the field.
  • The post-2024 landscape and what to expect 2025-2028.

2. Constitutional Foundations

Administrative law sits at the intersection of three Article powers and several structural doctrines.

2.1 Article I — Delegation

Congress creates agencies, defines their jurisdiction, and supplies the “intelligible principle” that channels agency discretion.

J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).

The non-delegation doctrine has been moribund since A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) invalidated the National Industrial Recovery Act — the last successful invocation.

The doctrine has been gathering renewed momentum (Gundy, Jarkesy).

2.2 Article II — Execution

The President directs the executive branch and, through the Office of Information and Regulatory Affairs (OIRA), centrally reviews significant rules.

Removal power, appointments, and unitary executive theory all flow from Article II.

2.3 Article III — Review

Federal courts decide whether agencies have exceeded statutory authority, violated procedural requirements, or rendered arbitrary decisions.

Article III standing and case-or-controversy requirements bound the federal judicial role.

2.4 Statutory Scaffold

The Constitution coexists with a layered statutory framework built primarily after the New Deal:

  • Administrative Procedure Act of 1946 (Pub. L. 79-404; 5 U.S.C. §§551-559, §§701-706) — the “constitution of administrative law.” Establishes notice-and-comment rulemaking, formal adjudication, judicial review standards, and the basic taxonomy of agency action.
  • Federal Advisory Committee Act of 1972 (FACA; 5 U.S.C. App. 2) — transparency and balance requirements for advisory bodies.
  • Freedom of Information Act of 1966 (FOIA; 5 U.S.C. §552) — public access to agency records, subject to nine exemptions.
  • Government in the Sunshine Act of 1976 (5 U.S.C. §552b) — open meetings for collegial bodies.
  • Privacy Act of 1974 (5 U.S.C. §552a) — agency recordkeeping limits.
  • Paperwork Reduction Act of 1980/1995 (44 U.S.C. §§3501-3521) — OMB clearance of information collections.
  • Regulatory Flexibility Act of 1980 plus SBREFA of 1996 — small business impact analysis and congressional review.
  • Unfunded Mandates Reform Act of 1995 (2 U.S.C. §§1501 et seq.).
  • Information Quality Act of 2000 (Pub. L. 106-554, §515) — data integrity standards for disseminated information.
  • Negotiated Rulemaking Act of 1990 (5 U.S.C. §§561-570a) — committee-based consensus rulemaking.
  • Congressional Review Act of 1996 (CRA; 5 U.S.C. §§801-808) — 60-legislative-day window for Congress to disapprove a “rule” with a joint resolution exempt from filibuster.

The CRA was used once between 1996 and 2016 (Clinton OSHA ergonomics rule, repealed under Bush 43).

It was used over a dozen times in the Trump 45 administration.

Twice during Biden — Methane Waste Emissions Reduction Rule and NLRB joint-employer rule.

It is queued for heavy use in 2025.

3. The Federal Agency Universe

Federal agencies fall into three broad categories.

3.1 Executive (Cabinet) Departments

Fully accountable to the President via at-will removable secretaries:

  • Department of Justice (DOJ).
  • Department of Defense (DOD).
  • Department of State.
  • Department of Homeland Security (DHS).
  • Department of Labor (DOL).
  • Department of Energy (DOE).
  • Department of Education.
  • Department of Agriculture (USDA).
  • Department of Health and Human Services (HHS).
  • Department of the Interior (DOI).
  • Department of Transportation (DOT).
  • Department of Commerce.
  • Department of the Treasury.
  • Department of Veterans Affairs (VA).
  • Department of Housing and Urban Development (HUD).

3.2 Independent Regulatory Commissions

Typically multi-member, bipartisan, with fixed terms and statutory “for cause” removal protection. Often consolidate rulemaking and adjudicative power:

  • Securities and Exchange Commission (SEC).
  • Federal Trade Commission (FTC).
  • Federal Communications Commission (FCC).
  • National Labor Relations Board (NLRB).
  • Federal Energy Regulatory Commission (FERC).
  • Nuclear Regulatory Commission (NRC).
  • Equal Employment Opportunity Commission (EEOC).
  • Environmental Protection Agency (EPA — technically executive but operates with substantial independence).
  • National Transportation Safety Board (NTSB).
  • Board of Governors of the Federal Reserve System.
  • Commodity Futures Trading Commission (CFTC).
  • Occupational Safety and Health Administration (OSHA — within DOL but with regulatory autonomy).
  • International Trade Commission (ITC).
  • Federal Maritime Commission (FMC).
  • Consumer Financial Protection Bureau (CFPB — single-director structure; post-Seila Law removable at will).

3.3 Quasi-Independent Corporations and Bureaus

Government corporations, government-sponsored enterprises, and hybrid entities:

  • United States Postal Service.
  • Federal Deposit Insurance Corporation (FDIC).
  • Federal Housing Finance Agency (FHFA).
  • Farm Credit Administration.
  • Office of the Comptroller of the Currency (OCC — within Treasury but with statutory independence).

The Office of Thrift Supervision was abolished and its functions absorbed by OCC under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Pub. L. 111-203).

4. The Agency Toolbox

4.1 Rulemaking

The bread-and-butter agency function. Three APA species:

Informal (notice-and-comment) rulemaking under §553.

The dominant mode: agency publishes a notice of proposed rulemaking (NPRM) in the Federal Register, accepts public comments (typically 60 days; longer for complex rules), responds to material comments in the preamble of the final rule, and publishes the final rule with an effective date.

Formal rulemaking under §§556-557.

“On the record after hearing” — trial-type proceedings before an Administrative Law Judge.

Vanishingly rare since United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973) read the trigger narrowly.

Negotiated rulemaking (“neg-reg”) under the Negotiated Rulemaking Act of 1990 (5 U.S.C. §§561-570).

Convened committees of stakeholders draft consensus rules. Consumes agency capacity but reduces post-promulgation litigation.

4.2 Adjudication

APA §554 governs formal adjudication.

Administrative Law Judges (ALJs) preside, governed by Subchapter II of the Civil Service Reform Act.

Lucia v. SEC, 585 U.S. 237 (2018) held that SEC ALJs are “inferior officers” who must be appointed consistent with the Appointments Clause, triggering remedial appointments across the agency landscape.

Informal adjudication — the vast majority of agency case-by-case decisions — proceeds under §555 with only skeletal procedural requirements supplemented by agency-specific statutes and constitutional due process.

4.3 Investigation and Enforcement

Subpoena power, civil investigative demands (CIDs), document requests, on-site inspections, and referrals to DOJ for criminal prosecution.

Constitutionally constrained by the Fourth Amendment — Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) requiring warrants for non-pervasively-regulated industries.

4.4 Licensing

The classic regulatory bottleneck:

  • FCC broadcast licenses.
  • FDA new drug approvals.
  • NRC reactor licenses.
  • SEC investment adviser registrations.
  • USDA slaughterhouse approvals.

4.5 Guidance Documents

Interpretive rules, policy statements, manuals, and “Dear Colleague” letters.

Long treated as a low-cost agency tool exempt from §553 notice-and-comment.

Subjected to escalating procedural overlay:

  • Trump 45 EO 13891 (rescinded by Biden in 2021).
  • OMB Memorandum M-20-02.
  • Perez v. Mortgage Bankers Association, 575 U.S. 92 (2015), which held that agencies may change interpretive rules without §553 process (overruling the D.C. Circuit’s Paralyzed Veterans doctrine).

The underlying interpretation may now receive less deference after Loper Bright.

5. The Rulemaking Process — Step by Step

  1. Drafting inside the agency, often informed by petitions for rulemaking, congressional pressure, executive orders, or litigation settlements.
  2. OMB / OIRA review under Executive Order 12866 (Clinton, 1993) as amended by EO 14094 (Biden, 2023). EO 12291 (Reagan, 1981) originated centralized review. EO 14094 raised the “significant regulatory action” threshold to 100 million) and overhauled OMB Circular A-4 (cost-benefit guidance).
  3. The 2023 Circular A-4 revision introduced a 2% real discount rate (down from 3%/7%), explicit distributional weighting, and longer time horizons for climate analyses.
  4. Notice of Proposed Rulemaking published in the Federal Register; docket opened on regulations.gov.
  5. Public comment period — minimum 30 days; typically 60; 180+ for major rules.
  6. Response to material comments in the preamble of the final rule.
  7. Final rule plus effective date — typically 30 days post-promulgation for non-major; 60 days for major rules subject to CRA.
  8. Codification in the Code of Federal Regulations (CFR).
  9. Pre-enforcement and as-applied challenges in the courts.

A representative timeline for a “significant” rule consumes three to five years from initiating event to effective date.

A “significant” rule under EO 12866 §3(f)(1) is one with an annual economic effect of 100 million), or that creates serious inconsistency with another agency’s action, or alters entitlement programs, or raises novel legal or policy issues.

Roughly 200-300 final rules per year carry the “significant” tag; about 50-80 are “section 3(f)(1) significant.”

The agency must respond to “significant” comments — those that, if accepted, would require a change in the rule.

Pro forma boilerplate or recycled industry letters typically don’t compel responses, but courts under State Farm have set aside rules where comments raised material issues the agency ignored.

6. Standards of Judicial Review

The APA establishes a tiered review structure in 5 U.S.C. §706.

6.1 Arbitrary and Capricious — §706(2)(A)

The default standard for review of informal rulemaking and informal adjudication.

The seminal articulation is Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983), which struck down NHTSA’s rescission of the passive-restraint rule.

The Court enumerated four ways an agency action fails review:

  1. Relied on factors Congress did not intend it to consider.
  2. Entirely failed to consider an important aspect of the problem.
  3. Offered an explanation counter to the evidence.
  4. Is so implausible that it could not be ascribed to a difference in view or agency expertise.

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) and DHS v. Regents of the University of California, 591 U.S. 1 (2020) (DACA rescission) confirmed that an agency must acknowledge and explain departures from prior policy and reliance interests.

6.2 Substantial Evidence — §706(2)(E)

Applies to formal adjudication and formal rulemaking.

Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951): more than a scintilla but less than a preponderance — “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

The reviewing court considers the whole record, including evidence detracting from the agency conclusion.

6.3 De Novo — §706(2)(F)

Rare.

Available only where specifically authorized by statute or where agency factfinding procedures are inadequate in adjudicating issues raised in a non-adjudicatory proceeding.

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) flagged the narrow circumstances.

6.4 Statutory Interpretation — The Chevron Era and Its End

For forty years, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) supplied the two-step framework:

  • Step 1: Has Congress directly spoken to the precise question? If so, follow the unambiguous text.
  • Step 2: If the statute is silent or ambiguous, is the agency interpretation a permissible construction? If yes, defer.

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (June 28, 2024) overruled Chevron, consolidated with Relentless, Inc. v. Department of Commerce.

Chief Justice Roberts wrote that courts must “exercise their independent judgment in deciding whether an agency has acted within its statutory authority” — the “best reading” standard.

The decision revived Skidmore v. Swift & Co., 323 U.S. 134 (1944) as the operative deference baseline: agency interpretations get respect to the extent of their “power to persuade” (thoroughness, validity of reasoning, consistency).

Loper Bright explicitly preserved past holdings decided under Chevron under stare decisis principles but disclaimed Chevron as a forward-looking default.

6.5 Major Questions Doctrine

Distinct from Chevron and surviving its demise.

The doctrine requires “clear congressional authorization” for agency action of “vast economic and political significance.”

Lineage:

  • FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) — FDA could not regulate tobacco as a drug absent clear authority.
  • Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014) — EPA could not unilaterally rewrite PSD thresholds.
  • Alabama Association of Realtors v. HHS, 594 U.S. 758 (2021) — CDC eviction moratorium struck.
  • NFIB v. OSHA, 595 U.S. 109 (2022) — OSHA vaccine-or-test ETS stayed.
  • West Virginia v. EPA, 597 U.S. 697 (2022) — Clean Power Plan struck; named the doctrine explicitly.
  • Biden v. Nebraska, 600 U.S. 477 (2023) — HEROES Act did not authorize the $430 billion student loan forgiveness program.

6.6 Auer / Seminole Rock Deference

Deference to agency interpretation of its own ambiguous regulations.

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945); Auer v. Robbins, 519 U.S. 452 (1997).

Survived but was substantially narrowed in Kisor v. Wilkie, 588 U.S. 558 (2019), which imposed a five-step prerequisite checklist before deference applies:

  1. Genuine ambiguity.
  2. Reasonable reading.
  3. Authoritative position.
  4. Substantive expertise.
  5. Fair and considered judgment, not post-hoc rationalization.

7. Constitutional Structural Doctrines

7.1 Non-Delegation

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) and Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) — the last successful invocations to invalidate federal statutes (NIRA).

The doctrine has been notionally available but lethal in zero cases since.

Gundy v. United States, 588 U.S. 128 (2019) refused to revive but produced a plurality plus Justice Gorsuch’s concurrence (joined by the Chief and Justice Thomas) signaling appetite for revival.

Justice Alito separately stated he would revisit.

SEC v. Jarkesy, 603 U.S. 109 (2024) referenced the doctrine.

7.2 Appointments Clause

Article II, §2, cl. 2.

Buckley v. Valeo, 424 U.S. 1 (1976) distinguished “Officers of the United States” (requiring Presidential nomination and Senate confirmation, or inferior-officer appointment) from mere employees.

Edmond v. United States, 520 U.S. 651 (1997) supplied the inferior/principal officer line: inferior officers have superiors who can review their decisions and remove them.

Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010) struck “double for-cause” insulation — PCAOB members removable only for cause by SEC commissioners themselves removable only for cause.

Lucia v. SEC, 585 U.S. 237 (2018) classified SEC ALJs as inferior officers triggering proper appointment.

7.3 Removal

The structural blockbuster of the modern era:

  • Myers v. United States, 272 U.S. 52 (1926) — Presidential removal power over executive officers.
  • Humphrey’s Executor v. United States, 295 U.S. 602 (1935) — Congress may impose “good cause” removal restrictions on multi-member independent commissions exercising quasi-legislative and quasi-judicial functions (FTC commissioners).
  • Morrison v. Olson, 487 U.S. 654 (1988) — independent counsel statute upheld; the high-water mark of acceptable insulation.
  • Seila Law LLC v. CFPB, 591 U.S. 197 (2020) — single-director independent agency with for-cause removal protection violates separation of powers. Severed the removal protection; CFPB director now removable at will.
  • Collins v. Yellen, 594 U.S. 220 (2021) — same logic applied to FHFA director.

If Humphrey’s Executor falls (a possibility regularly telegraphed in concurrences), every multi-member independent commission’s structure becomes vulnerable.

7.4 Anti-Commandeering

New York v. United States, 505 U.S. 144 (1992).

Printz v. United States, 521 U.S. 898 (1997).

Murphy v. NCAA, 584 U.S. 453 (2018).

Congress may not compel state officers to enforce federal regulatory programs.

Limits federal agency reach into state administration.

8. APA Doctrines of Reviewability

8.1 Final Agency Action

Final agency action is a prerequisite — 5 U.S.C. §704.

Bennett v. Spear, 520 U.S. 154 (1997) two-part test:

  1. Action marks the consummation of the agency’s decision-making process.
  2. Action determines rights or obligations or has legal consequences.

U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. 590 (2016) treated jurisdictional determinations as final.

8.2 Standing

Article III standing requires injury-in-fact, causation, and redressability.

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) — the foundational modern statement.

Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) — bare statutory violation insufficient without concrete harm.

TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) — extended Spokeo; intangible harms must have historical analog.

Murthy v. Missouri, 603 U.S. 43 (2024) — no traceable injury from alleged government coercion of social-media platforms.

FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024) — doctors lacked standing to challenge mifepristone approval.

8.3 Ripeness

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) two-factor test:

  1. Fitness of the issues for judicial decision.
  2. Hardship to the parties of withholding review.

8.4 Mootness

Capable of repetition yet evading review; voluntary cessation; collateral consequences.

Acheson Hotels, LLC v. Laufer, 601 U.S. 1 (2023) mooted ADA tester case as the plaintiff withdrew claims.

8.5 Exhaustion

Generally required where statute or agency rule mandates it; otherwise prudential.

8.6 Reviewability vs. Committed to Agency Discretion

5 U.S.C. §701(a)(2).

Heckler v. Chaney, 470 U.S. 821 (1985) — enforcement discretion presumptively unreviewable.

Department of Commerce v. New York, 588 U.S. 752 (2019) — census citizenship-question rationale was pretextual and reviewable.

9. High-Profile Modern Cases

9.1 The Foundational GHG Case

Massachusetts v. EPA, 549 U.S. 497 (2007) — greenhouse gases are “air pollutants” under CAA §202(a)(1); states have standing as quasi-sovereigns.

9.2 The Major-Questions Trio

West Virginia v. EPA, 597 U.S. 697 (2022) — major questions doctrine struck the Clean Power Plan’s generation-shifting approach.

Biden v. Nebraska, 600 U.S. 477 (2023) — $430 billion student loan forgiveness exceeded HEROES Act authority.

NFIB v. OSHA, 595 U.S. 109 (2022) — vaccine-or-test ETS stayed.

9.3 The 2024 Term — A Doctrinal Earthquake

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) and Relentless, Inc. v. Department of Commerce, 603 U.S. ___ (2024) — overruled Chevron.

Corner Post, Inc. v. Board of Governors of the Federal Reserve System, 603 U.S. 799 (2024) — the APA’s six-year statute of limitations runs from the plaintiff’s injury, not promulgation. Substantially extends exposure of long-standing rules to challenge.

SEC v. Jarkesy, 603 U.S. 109 (2024) — Seventh Amendment requires a jury trial when SEC seeks civil monetary penalties for securities fraud; in-house adjudication unconstitutional. Affects SEC, FTC, NLRB, and dozens of agencies with parallel adjudicatory regimes.

Murthy v. Missouri, 603 U.S. 43 (2024) — standing dismissal of First Amendment challenge to federal jawboning of social-media moderation.

FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024) — no standing for mifepristone challengers.

Garland v. Cargill, 602 U.S. 406 (2024) — ATF bump-stock rule held to exceed statutory definition of “machinegun.” Statutory-interpretation case foreshadowing post-Loper analysis.

Trump v. United States, 603 U.S. 593 (2024) — presidential immunity for “official acts” with implications for agency direction.

NetChoice, LLC v. Paxton / Moody v. NetChoice, LLC, 603 U.S. 707 (2024) — facial First Amendment challenges to state social-media content laws remanded.

9.4 Other Recent Decisions

Securities and Exchange Commission v. Cochran, 598 U.S. 107 (2023) — district courts have jurisdiction over structural pre-enforcement challenges to agency adjudication.

Sackett v. EPA, 598 U.S. 651 (2023) — narrowed CWA “waters of the United States” to wetlands with continuous surface connection. See employment-and-environmental-law.

Acheson Hotels, LLC v. Laufer, 601 U.S. 1 (2023) — ADA tester case mooted.

Consumer Financial Protection Bureau v. Community Financial Services Association of America, 601 U.S. 416 (2024) — CFPB funding mechanism upheld against Appropriations Clause challenge.

10. The Mechanics of Notice-and-Comment in Practice

The §553 process looks simple on paper but in practice consumes years and tens of thousands of staff hours.

A representative timeline for a “significant” rule:

Year 1.

Initiating event — petition for rulemaking under §553(e), congressional directive, statutory deadline, litigation settlement, or executive order.

Agency program office drafts a preliminary regulatory analysis.

Office of General Counsel review for statutory authority.

Initial OIRA prompt letter or pre-rule coordination.

Year 2.

Drafting of the NPRM.

Internal economic analysis.

Interagency review under OIRA’s “circulation” process — typically 90 days plus extensions.

Office of Management and Budget clearance.

Federal Register publication.

Year 3.

Comment period (30-180 days).

Industry, NGOs, states, tribes, and individual commenters submit material.

Agency staff codes and categorizes comments.

Substantive response preparation.

Year 4.

Final rule drafted incorporating responsive changes.

OIRA review again (and often more contentious because cost estimates have firmed up).

Final Federal Register publication.

Year 5.

Effective date.

Congressional review window.

Pre-enforcement challenges in the D.C. Circuit (and other venues for environmental matters under specific judicial-review statutes).

11. OIRA Review and Cost-Benefit Practice

OIRA — the Office of Information and Regulatory Affairs within OMB — coordinates centralized review for “significant” rules.

EO 12866 (Clinton, 1993) established the modern framework.

EO 13563 (Obama, 2011) reinforced it.

EO 14094 (Biden, 2023) modernized the thresholds and analytical methods.

Trump 45 substituted EO 13771 (one-in-two-out) and EO 13777 (deregulatory task forces), both rescinded by Biden.

11.1 OMB Circular A-4

The primary practitioner manual for regulatory analysis. Received its first comprehensive overhaul since 2003 in November 2023.

Key changes:

  • Real discount rates revised from 3% and 7% to 2% (intragenerational) for most analyses; lower for long-horizon climate impacts.
  • Distributional weighting incorporated as an optional but explicitly encouraged analytic step.
  • Longer analytical time horizons for climate and ecological impacts.
  • Sharper treatment of inframarginal effects, behavioral economics, and “non-quantified” benefits.
  • Updated value-of-statistical-life methodology — VSL roughly $13.4 million in 2024 dollars across major agencies, with explicit guidance on income-elasticity adjustments over time.

11.2 Critique of CBA

The cost-benefit framework is criticized from both directions.

Public-health and environmental scholars argue it systematically undervalues incommensurable harms.

Industry argues that benefits — especially co-benefits — are inflated.

The social cost of carbon — currently approximately 51 under prior IWG values — has been a particularly contested input.

Litigation over its use is ongoing in the Fifth, Eighth, and D.C. Circuits.

12. Specialized Procedural Statutes

Beyond the APA, dozens of agency-specific statutes overlay additional procedure.

A non-exhaustive map:

  • National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. §§4321-4347) — EIS preparation for “major Federal actions significantly affecting” the environment. See employment-and-environmental-law.
  • Regulatory Flexibility Act of 1980 (5 U.S.C. §§601-612) — Initial and Final Regulatory Flexibility Analyses for rules with significant impact on substantial numbers of small entities; SBA Office of Advocacy oversight.
  • Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; Pub. L. 104-121) — congressional review window; small-business advocacy review panels for EPA and OSHA rules and now CFPB rules.
  • Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. §§1531-1538) — analysis of mandates with annual costs exceeding indexed thresholds.
  • Paperwork Reduction Act of 1980 / 1995 (PRA; 44 U.S.C. §§3501-3521) — OMB clearance of information collections; ICR (Information Collection Request) review; the famous “OMB control number” on every form.
  • Information Quality Act of 2000 (Pub. L. 106-554) — peer review of “highly influential scientific assessments”; OMB Peer Review Bulletin (2004).
  • Negotiated Rulemaking Act of 1990 (5 U.S.C. §§561-570a) — committee-based consensus rulemaking.
  • Federal Advisory Committee Act of 1972 (FACA; 5 U.S.C. App. 2) — balance, openness, charter requirements for advisory committees.

Each adds opportunities for litigation.

The PRA in particular has been a sword for challengers to gum up enforcement of information collections lacking valid OMB control numbers.

13. Adjudication Procedure in Depth

Formal adjudication under APA §554 includes:

  • Notice of hearing time, place, nature, statutory authority, and matters of fact and law asserted (§554(b)).
  • Right to counsel (§555(b)).
  • Right to present case — oral or documentary evidence, cross-examination as needed for full and true disclosure of facts (§556(d)).
  • Separation of functions (§554(d)) — investigative/prosecutorial personnel may not participate in decision-making.
  • Ex parte contact restrictions (§557(d)) — bars off-the-record communications between interested outside parties and decision-makers.
  • Initial decision by ALJ with right to appeal to agency head (§557(b)-(c)).

Many agencies blend the system: an ALJ takes evidence and issues a recommended decision, then a Board or Commission renders the agency’s final decision.

SEC, FERC, NLRB, FCC, and many DOL adjudications follow this pattern.

13.1 Informal Adjudication

Informal adjudication — Social Security disability benefits, immigration decisions, IRS deficiency notices, VA benefits — operates with skeletal APA §555 protections supplemented by statute-specific procedure and constitutional due process.

Mathews v. Eldridge, 424 U.S. 319 (1976) supplies the procedural due-process balancing test:

  1. Private interest at stake.
  2. Risk of erroneous deprivation and probable value of additional procedures.
  3. Government interest.

Mass adjudication agencies (SSA, Immigration) carry caseloads in the hundreds of thousands; backlogs and delays are persistent due-process pressure points.

13.2 Jarkesy and the Future of In-House Adjudication

The post-Jarkesy world re-poses the basic constitutional question.

When an agency adjudication seeks “civil penalties” — a remedy with common-law-fraud analog — Article III and the Seventh Amendment may demand an Article III court and a jury.

The opinion’s reach beyond securities fraud is unresolved.

Downstream challenges target:

  • FTC consumer-protection penalties.
  • NLRB compensatory awards.
  • OSHA monetary penalties.
  • FCC forfeitures.

14. Standing in Detail

Article III standing is the front gate for any APA challenge.

The three-part test under Lujan:

  1. Injury in fact — concrete, particularized, actual or imminent (not conjectural or hypothetical). Spokeo and TransUnion reinforced that statutory violations alone do not suffice; concrete harm — including intangible harms with historical analog (defamation-like, intrusion-like) — is required.
  2. Causation / traceability — the injury must be “fairly traceable” to the challenged action and not the independent action of third parties. Murthy v. Missouri (2024) failed on this prong: plaintiffs could not show that platform-imposed restrictions traced to government coercion rather than the platforms’ independent judgment.
  3. Redressability — a favorable judgment would likely (not merely speculatively) redress the injury.

14.1 Special Standing Doctrines

Associational standing — Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977):

  1. Members would have standing in their own right.
  2. Interests germane to the organization’s purpose.
  3. Neither claim nor relief requires individual member participation.

Procedural standing — plaintiffs may sue to enforce procedural rights designed to protect their concrete interests, with relaxed immediacy and redressability (Lujan footnote 7; Massachusetts v. EPA).

State standing — states receive “special solicitude” (Massachusetts v. EPA) for quasi-sovereign and parens patriae interests, but cannot evade Article III.

United States v. Texas, 599 U.S. 670 (2023) — states could not challenge federal immigration enforcement priorities; the Court emphasized historical practice and traceability.

Third-party standing — generally disfavored except in close relationships and where the right-holder cannot easily assert their own rights.

Taxpayer standing — Flast v. Cohen, 392 U.S. 83 (1968) Establishment Clause exception, narrowed by Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007).

14.2 Corner Post and the Statute of Limitations

Corner Post v. Board of Governors of the Federal Reserve System, 603 U.S. 799 (2024) — APA suits accrue when the plaintiff is injured, not when the rule was promulgated, restarting the six-year statute of limitations under 28 U.S.C. §2401(a) for any plaintiff who comes into existence (or into regulation) after the rule.

The decision dramatically broadened the pool of long-standing rules vulnerable to challenge.

15. Independent Agencies and the Unitary Executive

The structural project of the Roberts Court has been to constrict the constitutional space for “independent” agencies.

The relevant cases form a clear arc:

  • Morrison v. Olson, 487 U.S. 654 (1988) — independent counsel statute upheld 7-1, with Justice Scalia’s solo dissent later vindicated as the intellectual blueprint.
  • Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010) — multi-layer for-cause removal unconstitutional; PCAOB members now removable at will by SEC commissioners (still themselves removable only for cause).
  • Lucia v. SEC, 585 U.S. 237 (2018) — Appointments Clause requires SEC ALJs to be properly appointed by the Commission rather than hired through merit-system process.
  • Seila Law LLC v. CFPB, 591 U.S. 197 (2020) — 5-4 invalidated CFPB single-director good-cause removal; director removable at will.
  • Collins v. Yellen, 594 U.S. 220 (2021) — same logic applied to FHFA.
  • Trump v. United States, 603 U.S. 593 (2024) — presidential immunity for “official acts”; intersects with removal authority over high-level officials.

Humphrey’s Executor remains formally good law for multi-member commissions, but the Court has signaled willingness to revisit.

The Fifth Circuit in Consumers’ Research v. CPSC, No. 22-40328 (5th Cir. 2024) — and similar cases against FTC, FDIC, and NLRB structures — are vehicles.

Trump 47 has indicated it will treat Humphrey’s as effectively overruled in personnel decisions, setting up direct litigation.

16. Federalism and Preemption

Federal regulatory power frequently displaces state law.

Doctrines:

  • Express preemption — statutory text supersedes state law (FIFRA, ERISA, ICCTA railroad regulation, FAA aircraft, FAAAA motor carrier).
  • Field preemption — federal regulation so pervasive as to occupy the field (immigration, nuclear safety).
  • Conflict preemption — impossibility (cannot comply with both) or obstacle preemption (state law obstructs federal purposes). Wyeth v. Levine, 555 U.S. 555 (2009); PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011); Merck Sharp & Dohme Corp. v. Albrecht, 587 U.S. 299 (2019).

State agency law mirrors federal in most large states.

California (OAL — Office of Administrative Law), New York (Department of State), and Texas (Office of Administrative Hearings) operate parallel APA-like procedures, sometimes more stringent.

17. State Administrative Law Highlights

The Model State Administrative Procedure Act (MSAPA, originally 1946; revised 1961, 1981, and 2010) influenced most state systems.

State-court doctrines on Chevron deference vary widely.

Post-Loper Bright, several state supreme courts (Ohio, Michigan, Florida, Tennessee, Wisconsin) had already abandoned analogues to Chevron; others (California, New York, Massachusetts) retain stronger deference to state-agency interpretations.

State non-delegation jurisprudence is, in some states, more aggressive than federal (Texas, Tennessee).

18. Foreign and International Comparators

  • The UK Tribunals, Courts and Enforcement Act 2007 consolidated administrative tribunals; judicial review is via the High Court under a “Wednesbury reasonableness” standard.
  • The EU Court of Justice reviews EU agency action under proportionality and manifest-error review.
  • Australia and Canada operate parallel administrative-tribunal systems with merit review and judicial review components.

US administrative law remains distinctive in:

  • The depth of pre-enforcement judicial review available.
  • The breadth of standing for ideological challengers (compared with European requirements of “direct and individual concern”).
  • The role of the major questions doctrine.

The post-Loper Bright movement toward “best reading” interpretation aligns more closely with continental civil-law judicial supervision of administration than with the Westminster deference tradition.

19. Notable Scholars and Practitioner Resources

Leading academic figures:

  • Cass Sunstein (Harvard) — behavioral regulation and cost-benefit theory.
  • Nicholas Bagley (Michigan) — anti-procedural administrative law.
  • Jonathan Adler (Case Western) — structural critiques.
  • Adrian Vermeule (Harvard) — originalism-versus-administration debates; “common-good constitutionalism.”
  • Lisa Heinzerling (Georgetown) — environmental and CBA critique.
  • Lisa Bressman (Vanderbilt).
  • Christopher Walker (Michigan) — agency procedure and judicial review empirics.
  • Eric Posner (Chicago).
  • Jerry Mashaw (Yale) — dignitary process and Social Security administration.
  • Jeffrey Pojanowski (Notre Dame) — post-Chevron interpretive theory.
  • Aaron Nielson (BYU; ACUS).

Practitioner resources:

  • Administrative Law Treatise (Pierce) — the leading multi-volume practitioner reference.
  • The Administrative State (Strauss, Rakoff, Farina, Metzger) — academic casebook.
  • Administrative Conference of the United States (ACUS) recommendations and reports — the closest the federal system has to a Restatement of Administrative Law.
  • Yale Journal on Regulation and Administrative Law Review — leading journals.

20. The Post-2024 Landscape

The decisional vector is unmistakable: deference contracts, judicial supervision expands, structural protections erode.

Agencies are recalibrating in three ways:

  1. Drafting for the best-reading court. Preambles now read more like appellate briefs, with explicit canons-of-construction analysis rather than reliance on “the agency is owed deference.”
  2. Risk-adjusting major actions. Substantial rules are increasingly accompanied by parallel non-rulemaking channels (guidance, enforcement) and statutory back-up theories.
  3. Anticipating Corner Post exposure. Long-standing rules face renewed challenge from plaintiffs who can plausibly argue their injury is recent.

The Trump 47 administration has signaled:

  • Aggressive use of Schedule F to expand at-will civil service categories.
  • Reanimation of Reagan-era central regulatory review.
  • Broad CRA disapprovals.
  • Litigation aimed at reaching Humphrey’s Executor on the merits.

Whether the Wickard-era settlement of administrative deference survives this decade is genuinely in doubt.

21. Looking Forward — 2025-2028

The combination of Loper Bright, Corner Post, Jarkesy, and the major questions doctrine creates a permanent shift in litigation posture.

Agencies will continue to issue rules but with weaker doctrinal defenses on appeal.

Plaintiff-side incentives to forum-shop to the Fifth and Eleventh Circuits, where panel composition is most receptive, will intensify.

Congressional appetite to legislate around adverse decisions remains uncertain given divided government; CRA disapprovals and appropriations riders are the more likely vehicles.

The non-delegation doctrine, dormant for ninety years, may receive a Court-altering revival.

Consumer Financial Protection Bureau v. Community Financial Services Association of America, 601 U.S. 416 (2024) (upholding CFPB funding mechanism) suggests the Court is not yet ready, but several Justices have flagged the issue.

The single most consequential pending question is whether Humphrey’s Executor survives — if it does not, every independent commission’s institutional architecture is in play.

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