Administrative law is both 1) the law that governs agencies and 2) the law that agencies make. In Public Institutions (“PI”), we are going to learn about how U.S. agencies are governed. At CUNY School of Law, we call our administrative law class "Public Institutions" to highlight the public nature of government agencies. Government agencies belong to us, they are funded by our tax dollars and staffed by appointees chosen by officials we elect. Public institutions are supposed to carry out programs for our benefit and to maintain our national, state, and local infrastructure. As we learn about the ways agencies carry out their mandates, we will also assess whether they are meeting their responsibilities to the public.

How we govern agencies affects the law that agencies make. Agencies play big roles in administering justice. For instance, agencies decide who can pollute and how much. Agencies determine the limits of corporate power, breaking up monopolies and regulating industries like social media platforms and banks. Law enforcement, immigration enforcement, and prison systems are agencies. When we work on issues related to immigration law, environmental law, corporate accountability, policing, and incarceration, we are participating in or practicing administrative law.

Before class, you listened to a podcast about peanut butter. Administrative law textbooks and treatises use the peanut butter regulation as an example of overregulation, the idea that agencies’ “red tape” gets in the way of the free market. (In the Peanut Butter Grandma’s case, Food and Drug Administration ("FDA") rules and requirements are getting in the way of peanut butter companies’ innovations.)

The battle between industry and regulators is a recurring theme in administrative law. Industry pushes for less restrictive regulation and regulators push to regulate industries whose activities may threaten human health and welfare. Describing the peanut butter fight as “red tape” diminishes peoples’ concerns about food safety and our desire to know what is in the food we buy. While Skippy, Jif, and Peter Pan compete to make the most commercially appealing peanut butter at the lowest cost, the Peanut Butter Grandma and her peers worry about the health risks posed by the industrialized food science practices that use new, untested chemical additives. Labelling fights food quality fights as “administratively burdensome” diminishes the importance of public access to healthy, safe foods.

Dismissing industry regulation as “red tape” is also a way for corporations to minimize the concerns of people with less control over the types of food available to them and the quality of that food. As is the case in many regulatory battles, peanut butter regulation was part of a much larger issue. Food, and food shopping, changed dramatically during the 1900’s. Food that was once sold in bins was being manufactured by machinery and sold, pre-packaged, to buyers. People could no longer tell what was in food, or how it was being made. For instance, before the 1900’s, crackers were sold from large barrels instead of wax paper sleeves in cardboard boxes. The “peanut butter wars” were taking place in a broader social justice backdrop: consumers were worried about the increasing use of chemical additives and complicated processing techniques in producing the foods available on their grocery shelves. They didn’t know what they were eating, and there were few obligations for food manufacturers to explain the recipes they used to make the foods they were selling. 

The article When Does it Stop Being Peanut Butter? By Angie M. Boyce (linked here: https://muse.jhu.edu/article/611800/pdf) describes the power imbalance between food manufacturers and consumers in more detail. [The article is optional but interesting! :-)]

Congress charged a federal agency, the Food and Drug Adminstration, with protecting consumers by ensuring access to safe food. This should raise a few questions for you, as new administrative law learners: 1) What is an agency? 2) How are agencies formed? 3) Who decides which agencies exist and what they control? The next section will provide some basic answers to these questions.

What is an Agency?

The Administrative Procecure Act ("APA") defines "agency" in Title 5 of the United States Code at 5 U.S.C. § 551(1). Much of our semester will be spent looking at this statute, originally passed by Congress in 1946 to govern how federal agencies can make and enforce rules.

We are going to spend all of Class 3 learning about the APA, so I’ll save the exciting details about the statute until then. (Something to look forward to!!) 

According to the APA, 5 U.S.C. § 551(1), agencies are “authorities of the Government of the United States.” 

What a federal agency is is pretty vague, isn’t it? The next part of the definition is more specific, identifying what a federal agency isn’t: Congress, the courts of the United States, state and local governments, including the D.C. government, and certain military exercises and activities are NOT government agencies according to the APA.

While the APA doesn’t mention whether the President is an agency, the Supreme Court says that the President is not an agency under the APA. Franklin v. Massachusetts, 505 U.S. 788 (1992) (saying the President’s report to Congress about Census statistics is not an “agency action” because the President is not included in the APA’s purview). 

The President isn’t subject to the APA, but the President is the head of the executive branch of government, and the executive branch contains executive agencies. As the head of the executive branch of government, the President gets to choose who runs executive agencies. 

The Structure and Parts of our Agency System

Agencies’ relationships to one another are like branches of a tree: there are some large agencies with smaller sub-agencies:

The largest agencies are called “departments.” When Presidents gather the heads of all of the departments together, that leadership is called the President’s “Cabinet.” As more and more departments have been created, Presidents calling upon their Cabinets for advice and counsel has become less common. But, if you ever hear people talk about the “Cabinet,” they are referring to the heads of all of the departments. 

Each department is led by a “Secretary,” except for the Department of Justice, which is led by the Attorney General. The President appoints department heads with the advice and consent of the Senate. (We will learn about the appointments process later this semester.) The department heads hold their offices at the pleasure of the President, which means the President can fire the department heads for any reason. Departments have General Counsel in charge of the department’s lawyers.

The University of Washington’s library has created a guide listing all of the Departments and providing information about those agencies.

Departments contain sub-agenciess. Each sub-agency is an “executive agency” for legal purposes. For example, the Occupational Safety and Health Administration (“OSHA”) is part of the Department of Labor. Generally, the people in charge of these sub-agencies are also appointed by the President with the advice and consent of the Senate and also serve at the President’s pleasure. They may have titles like “Administrator,” “Director,” or “Chief.” Their titles are not uniform and the titles do not indicate any unique powers or limitations. These sub-agencies generally have their own general counsel’s offices staffed with lawyers. If you are considering working for the federal government, you may end up working in one of these counsel’s offices.

Some agencies are not part of a department. Most agencies that are not sub-agencies under a department are considered “independent agencies.” Agencies like the National Labor Relations Board (“NLRB”) and the Federal Trade Commission (“FTC”) are independent agencies. A few agencies are considered executive agencies even though they are not within departments. The Environmental Protection Agency (“EPA”) is one of the agencies that is an executive agency not part of a department-level agency. 

Historically, independent agencies have been considered more independent from the President’s influence and political force than agencies under executive control. Some of the attributes of independent agencies that make them independent from Presidential control include the following:

• Independent agencies are usually not headed by a single person, but by a group of people (a board or commission), and often, the statutes that create the independent agencies require that there be representatives from both political parties in the leadership group.
• Independent agency heads generally do not serve at the pleasure of the President, and they can only be removed for cause (and not just because the President wants them out). Thus, executive agency heads usually serve until they are fired (often when a new President is elected), while independent agency heads usually serve for a term of years (say, 5 years) that is staggered across Presidential administrations.

However, independent agencies are not totally free from political divisions. For instance, when a member of the Federal Election Commission (the “FEC,” an independent agency charged with enforcing campaign finance laws in federal elections) resigned in 2019, the President nominated a replacement. The Senate did not confirm the nominee, and the FEC still lacks a quorum (the minimum number of required members), so the FEC cannot do much of its work.

Here is a news report describing the FEC issue: As FEC Nears Shutdown, Priorities Such As Stopping Election Interference on Hold.

In 1993, there was a Senate bill proposing to make the EPA the “Department of the Environment,” a Cabinet-level agency, but the legislation did not pass.

While our class will focus on federal agencies, every state government, and many local governments have their own, similar administrative systems and administrative laws. As with legislative and judicial systems, the agency systems run similarly, but parallel to, those in the federal system. State agency heads are often appointed by state governors at the pleasure of state legislative bodies.

We just learned what the structures of our federal agencies look like. (Departments are large executive agencies that contain many smaller agencies, and there are also independent agencies apart from the executive branch of government.) The next question we will answer is “where do agencies come from?”

Agencies are generally created by Congress, through organic and enabling statutes. Organic statutes are specific kinds of enabling statutes that create government agencies and define their original scope and authority. Enabling statutes are statutes that confer new powers on agencies or allow them to do something they were not authorized to do before. Enabling statutes establish the powers and responsibilities of government agencies. 

Legislative Delegation of Power

Why can Congress create agencies and have them do things that Congress could do itself if Article I, Section 1 of the U.S. Constitution reserves “all legislative powers” for Congress? A literal reading of this passage of the Constitution would mean that Congress is the only body that can carry out rulemaking and governing powers like those that agencies perform.

The Constitutions assigns a lot of work to Congress. Section 8 of Article I of the Constitution orders Congress to “make all laws which shall be deemed necessary and proper” to carry out a whole laundry list of specific “powers” including collecting taxes, providing for the “common defense and general welfare of the United States”, regulating commerce and money itself, promoting the “progress of science,” constitute tribunals inferior to the Supreme Court, declare war, and more. In short, the Constitution gave Congress a LOT of stuff to be in charge of!

Here is Article I of the U.S. Constitution if you want to see the “laundry list” of powers for yourself.

In addition to exercising all of these powers, making legal ideas into reality takes a lot of work. For instance, imagine legislators learn that air pollution is making their constituents sick with chronic illnesses like asthma and lung cancer. The legislators respond to the problem by drafting a bill to improve air quality. However, the legislators are not experts on air pollution. They are not familiar with the science behind air pollution and public health, nor do they know how to engineer solutions that will reduce the harmful impacts of air pollution. They also do not have the time to become experts in this narrow topic, or to conduct the necessary studies to determine how to clean up the air across the nation.

On the other hand, agencies are staffed with experts and ready to develop programs to carry out their Congressionally mandated missions. The EPA’s mission is to “protect human health and the environment.” Thus, improving air quality would be squarely in the EPA’s wheelhouse.

Ideally, Congress would be able to delegate (authorize/entrust) the work of putting a law like the Clean Air Act into action to an agency like the EPA. But, if Congress is the only government body vested with “all legislative powers” in the Constitution, how can Congress let agencies exercise those powers?

The Supreme Court has allowed for the delegation of Congressional power. The Court says that, in some cases, Congress can assign its legislative power to agencies. In 1825, the Supreme Court adopted a narrow interpretation of the Constitutional imperative in Article I, Section 1, saying that Congress can’t delegate powers that are “are strictly and exclusively legislative,” like making statutes. But, the Court said that Congress can delegate some powers. Since 1825, we’ve argued about where to draw the line between activities that are “strictly legislative” and activities that can be delegated to agencies. (We will discuss the delegation doctrine in depth later in the semester.)

What do Agencies do?

Here are just a few of the things agencies do:

Make Rules (Regulations) and Guidance to help people follow the rules: Congress often grants rulemaking authority, the power to make binding regulations, to federal agencies to implement statutory programs. The regulations that agencies issue under Congressional authority have the force of law. The APA lays out the procedures agencies must follow when making rules. There are steps agencies have to take as they are making regulations (except under certain circumstances we will learn about in Class 9). Agency rulemaking is quasi-legislative, a delegation of law-making authority to agencies. Agencies often write manuals, letters, guides, pamphlets, and other materials to tell regulated entities how to comply with the regulations they make. These supplementary materials are called guidance. They do not carry the force of law.

Here is an overview of the rulemaking process from the Congressional Research Service: https://fas.org/sgp/crs/misc/IF10003.pdf. We will be spending the first part of our class studying the rulemaking process.

Hear Disputes Between Individuals and the Government: Congress also grants quasi-judicial authority to agencies in some enabling acts. Agencies can establish court-like adjudicatory tribunals that are referred to as Article I courts because they are established under Article I of the Constitution instead of Article III (the Article that establishes the judicial branch of the federal government system). These tribunals are staffed with administrative law judges (“ALJ”s). Agencies’ Article I tribunals can only hear disputes within the scope of the relevant enabling statute. Article I decisions can have the force of law, as if a court made the decision, if an enabling act specifies that the decision is legally binding on the parties involved in the adjudication. The decisions are subject to judicial review to ensure they are consistent with the enabling acts and the agency has followed the required procedures. 

Regulate Private Conduct (Enforce Regulations): Agencies enforces the laws that Congress empowers them to enforce. The EPA requires regulated entities to send regular updates about air emissions, water pollution, and other hazardous activities. It also enforces laws like the Clean Air Act, Clean Water Act, and laws regulating toxic substances like insecticides when people and companies break the laws. Some enabling acts give the EPA the power to enforce criminal penalties against those who violate some environmental laws. (See this list on the EPA webpage, https://www.epa.gov/enforcement/criminal-provisions) The Equal Employment Opportunity Commission (“EEOC”) enforces laws that protect equal employment opportunities.

Agencies also regulate private conduct by running permitting and licensing programs. For instance, the Fish and Wildlife Service manages fish and wildlife resources by providing limited numbers of permits for a variety of wildlife activities. The EPA works with the Army Corps of Engineers to run a permitting program that requires inspections and studies before someone dredges or fills a body of water.

Administer Public Services Programs: Agencies run programs like Social Security, Medicare, Medicaid, welfare, and food stamps. These programs dispense federal and state funds for specified purposes. You may see these services being called “entitlements” in other administrative law texts. Entitlements are something people have a right to under the law. 

Investigate and Gather Factual Information: Agencies often need to get information from outside of the agency to support its rulemaking, adjudication, or enforcement actions. Unless Congress authorizes agencies to compel the production of that information, agencies have to rely on parties to voluntarily hand over the information. Congress may authorize an agency to compel the production of information through:


-Subpoena Power: Congress can authorize an agency to order the production of documentary evidence and witness testimony. The agency can use the subpoenaed information to make decisions and proceed with enforcement actions.

-Required Periodic Reports: Congress can also authorize an agency to compel regulated entities to file periodic and special reports with the agency. For example, the Securities and Exchange Act of 1934 directs the Securities and Exchange Commission (“SEC”) to require periodic reporting of information from publicly traded securities. That is why some companies have to file annual reports and other public disclosures about their business activities.

This is not an exhaustive list of everything agencies do. Agencies also conduct studies, collect data, among other activities. The Internal Revenue Service collects taxes. The Department of Treasury clears goods imported into the United States. The Forest Service sells timber. The National Aeronautics and Space Administration (NASA) sends people to the moon! Agencies have many roles and each of those roles impacts the welfare of people and companies.

Now that we know a little bit about what agencies are and what they do, let’s think critically about how agencies relate to social justice work. 

Agencies make decisions that profoundly impact peoples’ lives. They can determine who gets unemployment support, who has to pay for environmental destruction, and even who is deported in immigration proceedings. Consider the following questions in our Slack discussion:

• How do we feel about these decisions happening in agencies, instead of in Congressional or courtroom proceedings? (Note: Agencies are sometimes characterized as a “headless Fourth Branch of government” that aren’t directly accountable to the electorate.)
• Who runs agencies? Should they be able to make decisions like these?
• What about the argument that we need less bureaucratic “red tape” in our lives? Would less agency regulation be better?
• Can we look to these existing legal structures to build social justice, or is administrative law a tool of oppression? (This is a big question with many facets!)

Feel free to explore anything that you think of as you consider the role of agencies in public interest work. I want this to be a moment where we step back and consider administrative law’s role within public interest law and what we envision when we imagine a more just system of governance. [Governance means “action or manner of governing.”]

An Overview of the Administrative Procedure Act ("APA")

As we study administrative law, we are going to focus on three concepts: 

1) Power (Where do agencies get the power to do the things they do?)

2) Process (What procedures do agencies have to follow when they make decisions?)

3) Review (When can we intervene in agency decisionmaking to demand judicial review of agencies decisions?)

The Administrative Procedure Act ("APA") is the statute that tells agency employees what processes to use when they make decisions. The statute also tells us what our procedural rights are when we participate in agency decisionmaking and when we ask courts to review agency decisions.

We see the APA at play in the Peanut Butter Wars Podcast we listened to for class today. The podcast does not talk explicitly about the APA, but the APA governs everything that happens in the story. The episode starts as the Food and Drug Administration [“FDA”], a federal agency, issues a proposed rule to regulate peanut butter “pursuant to the authority of the Federal Food, Drug, and Cosmetic Act…” 

Here is how Earl “Duke” Collier (the “retired food and drug lawyer” Krissy Clark interviews in the podcast) describes the administrative processes in the peanut butter saga (I’ve highlighted the parts related to APA requirements):

“Like Mother Used to Make”: An Analysis of FDA Food Standards of Identity

By Richard A. Merrill and Earl M. Collier, Jr.

74 Colum. L. Rev. 561 (May, 1974)

[…] B. The Quest for “Peanut Butter”: A Case Study of FDA Standard-Making

The costs of food standardization and lengthy delays in the administrative process may be illustrated by examining the adoption of the standard of identity for “peanut butter.” No standard of identity existed for peanut butter in 1958, when the Proctor and Gamble Company (P&G) began marketing a new peanut butter under the brand name “Jif.” P&G’s marketing strategy took advantage of advances in oil chemistry that it had incorporated into the new product. Essentially, P&G had discovered that by “hydrogenating” oil and by using a specific multi-oil blend it could greatly increase the plasticity of peanut butter across a wide range of temperatures. This process made “Jif” smooth and highly spreadable, qualities that P&G hoped would create a large market for the product. Shortly after initial marketing of “Jif,” however, the FDA concluded that a peanut butter standard should be adopted and, on his own initiative, the Commissioner therefore published a proposed “Definition and Standard of Identity for Peanut Butter.” […]

This proposal alarmed most of the existing makers of peanut butter, for their products did not conform to the proposed standard. Moreover, they firmly believed that a peanut butter containing 95 percent peanuts would far exceed consumer expectations. Adoption of the proposed standard would have prevented them from marketing their products as “peanut butter.” And any effort to market the same formulas under a different name would in all likelihood have prompted the FDA to seize the products for having an appearance and function too much like “peanut butter.” The FDA’s proposed standard particularly threatened P&G because it specified that only hydrogenated peanut oil could be used in “peanut butter,” and P&G’s “Jif” formula contained a blend of peanut, cotton seed, and rapeseed oils. Thus, “Jif” would not have been “peanut butter” under the proposed standard even if it had contained more than 95 percent peanuts, which it did not.

Manufacturers of peanut butter besieged the FDA with objections and in 1961 the agency amended its original proposal. The new version differed from the original in several respects: (1) The general description in paragraph (a) now provided that: “[P]eanut oil may be removed in part during processing and it may be added back in whole or in part.” (2) The required peanut content of the final product was now 90 percent. (3) The oil specification now allowed inclusion of “partially hydrogenated peanut oil,” “hydrogenated peanut oil,” and “mono-and diglycerides of peanut oil.”

These changes helped most manufacturers, but one—Corn Products Company (CPC)— had gained more than others. In the early 1930’s CPC had patented a manufacturing process that made its peanut butter unique and, the company believed, was the secret of the product’s success. Its brand, “Skippy,” was the largest selling peanut butter. CPC’s process involved squeezing peanuts to produce peanut oil. The oil was then refined, partially hydrogenated, and added back into the ground peanuts during the manufacturing process. When the process was complete, “Skippy” consisted of only 87 percent peanuts, but contained 90 percent peanut material by weight because of the presence of the peanut oil. The FDA’s new version recognized this “Skippy” process and, in effect, embodied it. Under the revised proposal “Skippy” was peanut butter.

P&G still had problems, however. With its oil formula, “Jif” failed to meet the proposed definition of “peanut butter.” P&G accordingly objected to the new proposal, arguing that hydrogenation and refinement made all oils indistinguishable, and that “Jif’s” oil formula was the same in function and content as hydrogenated peanut oil. Therefore, P&G contended, it made no sense to allow hydrogenated peanut oil but to preclude other hydrogenated oils.

Following P&G’s challenge, the Commissioner stayed his amended proposal and published a further amended proposal, which he soon amended once more. This fourth proposal retained the requirement that peanut butter contain 90 percent peanuts by weight, but it made several important substantive changes. The standard now provided that (1) the oil content of peanuts could be adjusted by addition or subtraction of peanut oil during processing; (2) the fat content could not exceed 55 percent; (3) the “[o]il products used as optional stabilizing ingredients shall be hydrogenated peanut oil or other vegetable oils in hydrogenated form, but the proportion of such other hydrogenated vegetable oils shall not exceed 3 percent by weight of the finished peanut butter”; and (4) the oils had to be named on the label, e.g., hydrogenated cottonseed oil.

This fourth proposal advantaged P&G to some extent but prejudiced CPC. P&G had persuaded the FDA that hydrogenated oils other than peanut oil should be allowed, but it had not convinced the agency that all hydrogenated oils were identical; hence the 3 percent requirement. Because P&G’s formula contained more than 3 percent non-peanut oil, “Jif” remained substandard, although by this time its peanut content had been raised to 90 percent. Moreover, the company’s marketing people objected to naming the particular oils involved, primarily because they feared consumer reaction to the presence in their product of rapeseed oil. P&G therefore continued to argue that all hydrogenated oils were similar, and that there was no need to include on the label more than the generic description “hydrogenated oil.”

This position, of course, deeply offended CPC. If all hydrogenated oils were considered fungible, CPC’s patented-process peanut butter would contain less than 90 percent peanut material. Thus CPC continued to insist that its oil process produced a peanut oil that was identifiable with its source, contrary to P&G’s position, and should be deemed peanut material. In the alternative, CPC contended that the standard should require a peanut content of less than 90 percent. Derby Foods—the maker of “Peter Pan,” the country’s second largest selling peanut butter—also opposed the proposed 90 percent floor. Unlike “Skippy,” in which the oil ingredient amounted to more than 10 percent, “Peter Pan” failed to meet the proposed standard because it contained too much sweetener.

In response to these objections the FDA, as required by the Act, convened a public evidentiary hearing on establishing a standard of identity for peanut butter. The hearing began on November 1, 1965 and lasted until March 15, 1966, producing a transcript of 7,736 pages. At the hearing, the leading companies advanced the positions outlined above: P&G contended that all hydrogenated oils should be treated as identical, while CPC and Derby argued that a minimum peanut content of 87 percent would meet or exceed consumer expectations. On December 6, 1967, some eighteen months after the hearing, the Commissioner published his initial findings of fact and conclusions. After receiving comments, his final order appeared on July 24, 1968. The final order retained the 90 percent minimum peanut content, but (1) deleted the 3 percent limitation on non-peanut oils; and (2) permitted, as an alternative to specific identification, labeling of oils generally as “hydrogenated vegetable oils.”

P&G had carried the day; CPC and Derby had been left out in the cold. “Jif” was “peanut butter,” but “Skippy” and “Peter Pan,” the two leading brands, were not. For CPC this result was particularly galling, for its patented process had set the market standard of peanut butter since 1931. Moreover, the process gave “Skippy” a protein value equal to a product containing 95 percent peanuts.

Both CPC and Derby sought review of the Commissioner’s final order in the Court of Appeals for the Third Circuit, but the FDA’s final action made it difficult for the two companies to maintain a united position. CPC’s product failed to meet the standard because of excessive oil content; Derby’s product was substandard because of a high sweetener content. In any event, ignoring the fact that “Skippy” and “Peter Pan” had been “peanut butter” in the minds of consumers for over thirty years and deferring to the Commissioner’s findings, the court upheld the new standard that forbade their sale as then constituted: “The fact of exclusion of the leading producers does not make the regulation unreasonable. Products have been excluded before.” The decision was unexceptionable, given the standard of review applicable in such cases, for the court could fairly conclude that the Commissioner’s action had been neither unreasonable nor arbitrary and was supported by substantial evidence. […]

The above account is told from the perspective of a food company lawyer. Notice whose perspective his account omits. Who is the star of our podcast story? Do they even make an appearance in the corporate attorney’s story? Consider this as we discuss participation in agency decisionmaking.

In the peanut butter podcast, the FDA goes through the APA’s rulemaking process (5 U.S.C. § 553) and formal hearing processes (5 U.S.C. §§ 556-557). The peanut butter manufacturers seek judicial review of the agency’s decision under 5 U.S.C. §§ 702 and 706. The court reviewing the agency’s decision followed the standard of review in 5 U.S.C. § 706 to determine that the FDA’s final rule was permissible because the FDA Commissioner’s action was not unreasonable or arbitrary, and because it was supported by substantial evidence. Corn Prod. Co. v. Food & Drug Admin., 427 F.2d 511, 513 (3d Cir. 1970).

You can see the concepts described at the start of our Class 3 reading in the podcast:

1) Power (Congress delegated its authority to regulate food safety to the FDA),

2) Process (the FDA followed APA rulemaking and adjudication processes), and

3) Review (the peanut butter manufacturers sought judicial review of the agency’s final rule, and the Third Circuit Court of Appeals used the standard of review described in APA). 

Why is there an Administrative Procedure Act?

Why did Congress decide to make a statute to define agencies procedures, and to ensure that the public could seek judicial review for agencies’ final actions? Congress saw that, although agencies are technically within one branch of government, an agency’s authority often extends into functions of other branches. Without checking agencies’ authority and regulating agencies, agencies could violate the separation of powers. The APA provides constitutional safeguards, setting limitations on what agencies can do and how they can fulfill their roles. The APA ensures that: 

• Agencies keep the public informed of their activities,
• Agencies provide for public participation in the rulemaking process, 
• Agencies use uniform standards of conduct in their procedures,
• The public has access to judicial review of agency decisions, and
• The courts have a defined scope of judicial review of agency decisions.

Here is a PDF of the APA. We will be using this throughout the semester. You can also see the APA on Cornell’s LII website.

Let’s start looking at the APA together in our discussion today. Consider:

-Where do we see opportunities for public participation in agency decisionmaking? (Hint: check out sections 553 and 702)

-What types of actions can courts review under 706? How can we figure out what an “agency action” includes?

-Do you think the APA meets the goals of preserving the separation of powers, giving the  public opportunities to participate in agency decisionmaking, and allow courts to intervene and review agency actions? Considering agencies are staffed by unelected officials, does the APA give the other branches of government, and the public, sufficient means to check agencies’ power?