What Is (And Is Not) An Agency?

A threshold question as we begin our study of the APA is what counts as an agency. This is important for a number of reasons which will become apparent. Most importantly, status as an "agency" is necessary for the APA to apply at all. But, despite the importance of the question, it is often a difficult one to answer. As the first edition of the ACUS Sourcebook on Executive Agencies noted, "there has been a substantial amount of litigation over which government entities fall within the APA's purview," and “what constitutes an agency under the APA is governed on a case-by-case basis through litigation." Jennifer L. Selin & David E. Lewis, ACUS: Sourcebook of United States Executive Agencies (2012). For this reason, nobody agrees on exactly how many executive agencies exist: as of 2012, estimates ranged from "78 independent executive agencies and 174 components of executive departments" to "137 independent executive agencies and 268 units in the Cabinet." Id. New entities are created all the time by the government, or even by the private sector or state governments, and these entities inevitably raise new questions about whether they should be bound by the APA.