APA Designated Processes

As discussed earlier in the casebook, the APA distinguishes between adjudication and rulemaking. Less clear, but no less important, is that it distinguishes between formal and informal varieties of each category of action (Note: a recent article challenges this longstanding received wisdom when it comes to adjudication, and we'll talk more about this challenge in class. See Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. 377 (2021).)

If you put these two distinctions together, you end up with a very helpful 2X2 table that, to a large extent (exceptions do apply) maps the terrain of possible agency action. The most barebones version of this 2X2 table is below:

Knowing what kind of action in this simple 2X2 you are dealing with is your starting point for answering almost any procedural administrative law question you might confront. This is a bit of an overstatement, of course--the law is never that simple. For one thing, each of the sections cited in this table contains many provisions, many of which are not crystal clear, and this introduces opportunities for agencies to improvise (at least above the "floor" set out clearly in the APA) and for parties affected by agency action to argue that agencies did not really comply with its requirements. For another thing, as the introductory section mentioned, sometimes Congress mandates that agencies comply with agency-specific procedures that can often be a mashup, or hybrid, of the APA's categories.

Thus, as you read the materials in this section, you need to figure out which quadrant applies, if any, and then figure out what procedural requirements, if any, are in question. Doing so is best done by studying the APA's text closely and reading how courts have sorted out the answers in a sample of cases. As you will see, core themes from the introductory chapter about how to deal with indeterminacy in administrative law are very important here. Historically, courts have drawn on the purposes of administrative law to flesh out the APA's bare bones, but in many ways the center of gravity has shifted to a more textualist/originalist approach. These shifts, unfortunately, do not provide too much certainty about what procedures are required of agencies, although there are certain rules that seem beyond reconsideration. Our goal in this subsection is to map the terrain and understand both what is absolutely required of agencies and how agencies ought to navigate the "white space" between the rules. See Emily S. Bremer & Sharon B. Jacobs, Agency Innovation in Vermont Yankee's White Space, 32 J. Land Use & Envtl. L. 523 (2017).