Five Pillars of the Administrative State
Agency control
•Court cases •Major arguments •Reform proposals •Scholarly work •Timeline
More pillars
•Agency control •Executive control •Judicial control •Legislative control •Public control
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Theagency control pillar focuses on the structure and function of administrative agencies. While the majority of agencies are housed under the executive branch, others are established asindependent federal agencies or are housed under the legislative or judicial branches. These structural variations impact agency oversight as well as agency interactions across branches. This pillar also involves understanding the nuts and bolts of agency functions, includingrulemaking andadjudication proceedings.

This article includes information about the following topics:

Key terms related to agency control of the administrative state: This section contains important terms and definitions related to the agency control of the administrative state.

Key laws and court cases related to agency control of the administrative state: This section contains important laws and policies related to the agency control of the administrative state.

• Court cases: This section contains significant court rulings related to the agency control of the administrative state.
• Federal laws: This section contains key federal policies regarding agency control of the administrative state.
• State laws: This section contains a 50-state survey of constitutions and administrative procedures acts (APAs) to see how each state approaches agency control of the administrative state.

Recent legislation related to agency control of the administrative state: This section tracks recent legislation by states about the agency control of the administrative state.

Reform proposals related to agency control of the administrative state: This section contains reform proposals related to the agency control of the administrative state.

Major arguments about agency control of the administrative state: This section contains key arguments about the agency control of the administrative state.

A timeline of agency control: This section contains a timeline of significant events related to agency control of the administrative state.

Scholarly work related to agency control of administrative agencies: This section contains important legal doctrines related to agency control of the administrative state.

Key terms related to agency control of the administrative state

See also:Concepts, terms, and definitions related to the administrative state

This section defines key terms related to agency control of the administrative state.

• Executive agency: A federal agency within the Executive Office of the President or one of the 15 Cabinet departments. Someindependent agencies with presidentially appointed, Senate-confirmed leaders also qualify.^[1][2] There is no definitive number of executive agencies.^[3]

• Independent federal agency: An agency operating with some autonomy from the executive branch, typically led by a board or commission. It may be defined as:
  • An agency outside the Executive Office of the President or Cabinet departments, not reporting to a higher executive official.
  • An agency where the top official has cause removal protections, limiting political influence.^[4][1][5]

• Rulemaking: The process by which federal agencies create, amend, or repeal regulations.Informal rulemaking allows public comments onproposed rules, whileformal rulemaking requires a hearing.Hybrid rulemaking blends elements of both.^[6]

• Publication rulemaking: A process allowing agencies to issue certain rules, such as general policies andinterpretive rules, directly in theFederal Register without theinformal rulemaking process. These rules provide guidance but do not create binding regulations.^[7][8]

• Negotiated rulemaking: A process where agencies and stakeholders seek consensus on aproposed rule before theinformal rulemaking process begins. Also known asregulatory negotiation orreg-neg, it aims to improve communication, reduce litigation, and enhance efficiency.^[9][10]

• Adjudication: The process agencies use to resolve disputes outside ofrulemaking, resulting in an adjudicative order. It may involve disputes between agencies and private parties or between private parties and can sometimes set agency policy.^[11][9]

Key laws and court cases related to agency control of the administrative state

See also:Laws, statutes, and bills related to the administrative state

This section features a list of significant laws and court cases related to agency control of the administrative state and a 50-state survey related to agency control.

Court cases related to agency control of the administrative state

See also:Court cases and lawsuits related to the administrative state

This section contains selectedcourt cases related to agency control of the administrative state.

• Humphrey's Executor v. United States (1935): TheU.S. Supreme Court describedindependent federal agencies as quasi-legislative and quasi-judicial entities and affirmed that their commissioners have protections against removal by the president.
• United States v. Florida East Coast Railway Co. (1973): TheU.S. Supreme Court held that formal rulemaking procedures are only required when a statute calls for a hearing "on the record."
• Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council (1978): TheU.S. Supreme Court held that courts cannot impose additional procedural requirements on agencies and cannot invalidate agency actions simply because they do not like the final result.
• Schweiker v. McClure (1982): TheU.S. Supreme Court allowed privately employed hearing officers to serve asadministrative judges in adjudication.
• Immigration and Naturalization Service (INS) v. Chadha (1983): TheU.S. Supreme Court held that thelegislative veto, which gave Congress oversight powers over specific agencyrulemaking actions in some cases, was unconstitutional.
• Iowa League of Cities v. Environmental Protection Agency (2013): TheUnited States Court of Appeals for the 8th Circuit affirmed that new agency regulations must be promulgated through the rulemaking procedures of the APA and cannot be implemented throughguidance documents.
• FCC v. Prometheus Radio Project (2021): TheU.S. Supreme Court held that federal agencies can pass thearbitrary-or-capricious test even if they do not have to have perfect empirical data before they make reasonable decisions.

For a full list of court cases related to the administrative state,click here.

Federal laws related to agency control of the administrative state

This section contains important legal doctrines related to agency control of the administrative state.

• TheAdministrative Procedure Act (APA) is a federal law passed in 1946 establishing uniform procedures for federal agencies to propose and issue regulations, a process known asrulemaking. The APA also addresses policy statements and licenses issued by agencies and provides forjudicial review of agencyadjudications and other final decisions.^[12][13][14]

For a full list of laws related to the administrative state,click here.

State laws related to agency control of the administrative state

See also:Five pillars of the administrative state: a 50-state survey

A 50-state survey of the administrative state: Each of the 50 states has its own state-level Administrative Procedures Act and, of course, a constitution, several of which have stronger or weaker provisions for empowering or reining in the administrative state at the state level.

The following links contain components of the50-state survey related to agency control of the administrative state.

• Agency dynamics: A 50-state survey
• Agency dynamics: States that define what qualifies as a guidance document
• Agency dynamics: States that prohibit administrative agencies from making rules in ways that do not follow established rulemaking procedures
• Agency dynamics: States that require administrative agencies to conduct cost-benefit analysis before implementing rules
• Agency dynamics: States that specify qualifications for any (even one) of their administrative agency leaders
• Agency dynamics: States with sunset provisions for administrative rules

Recent legislation related to agency control of the administrative state

See also:Ballotpedia's Administrative State Legislation Tracker

Ballotpedia’s Administrative State Legislation Tracker identifies proposed and enacted bills in 2024 and 2025 related to the administrative state. This section tracks recent legislation concerning agency control of the administrative state. To see all proposed legislation related to agency control,click here.

Ballotpedia has identifiedthree major legislative categories related to agency control:

• Agency structure and authority: These bills alter agency authority in significant ways. They may limit agencies by reducing funding or duties, or they may expand agency influence through the creation of new regulatory agencies.
• Administrative judges: These bills change how a state’s administrative judges operate. They often involve creating or abolishing central panels that hear agency cases. Some bills may also make administrative law judges' decisions the final agency action.

• Sunset review: These bills create or modify sunset review procedures. Sunset procedures may require a regular schedule for legislative review of agency rules or they may cause a rule to automatically expire at a certain date unless approved by the state legislature to remain in effect.

This map shows all enacted legislation from 2024 or 2025 related to 1) agency structure and authority, 2) administrative judges, and 3) sunset review. To find out more about these bills,click here.^[15]

Agency structure and authority legislation

This legislative category addresses significant changes to agency structure and authority. These bills may reduce an agency’s role by limiting funding and responsibilities or expand its influence by creating new regulatory entities. To see all proposed legislation related to agency structure and authority,click here.

This section listsenacted legislation related to agency structure and authority in 2024 and 2025. (Click on a bill for more information):^[16]

Administrative judges legislation

This legislative category concernsadministrative judges. These bills often focus on the creation or dissolution of central panels that hear agency cases. Some bills may also establish that administrative law judges' decisions serve as the final agency action. To see all proposed legislation related to administrative judges,click here.

This section listsenacted legislation related to administrative judges in 2024 and 2025. (Click on a bill for more information):^[17]

Sunset review legislation

This legislative approach addresses sunset review. Sunset review laws establish periodic evaluations of government agencies, programs, or regulations to determine whether they should be continued, modified, or terminated. To see all proposed legislation related to sunset review,click here.

This section listsenacted legislation related to sunset review in 2024 and 2025 (click on a bill for more information):^[18]

Reform proposals related to agency control of the administrative state

See also:Reform proposals related to agency control of the administrative state

Ballotpedia has identifiedthree major types of reform categories related to agency control:

• Internal agency rulemaking procedures: This category focuses on proposals to reform how rules are initiated and reviewed within agencies themselves.
• Civil service and staffing reform: This category addresses reforms to civil service hiring, training, staffing, and agency communication, with the goal of improving expertise, accountability, independence, and public understanding of agency functions.
• Agency structure and location: This category includes reforms aimed at decentralizing or restructuring agencies, especially by changing their geographic or operational footprints.

Major arguments about agency control of the administrative state

See also:Taxonomy of arguments about agency dynamics

This section contains key arguments about the agency control of the administrative state.

Arguments related to agency employee qualifications

Click the arrow (▼) in the list below to see claims under each argument.

1.Argument: Agency expertise strengthens public policy

2.Argument: Agency expertise contributes to regulatory stagnation

3.Argument: Administrative judges lack the expertise to preside over adjudication

4.Argument: Administrative judges' expertise meets the demand for adjudicative roles

Arguments related to agency interaction with the constitutional order

Click the arrow (▼) in the list below to see claims under each argument.

1.Argument: Agency adjudication violates the separation of powers

2.Argument: Agency adjudication does not violate the separation of powers

Arguments related to the Administrative Procedure Act

Click the arrow (▼) in the list below to see claims under each argument.

1.Argument: Informal procedures are insufficient to govern agency action

2.Argument: Informal procedures are sufficient to govern agency action

3.Argument: The Administrative Procedure Act is out of date and should be modernized

4.Argument: The Administrative Procedure Act should be resuscitated and agencies should revive formal procedures

5.Argument: Agency theory and practice should align

Arguments related to agency political accountability

Click the arrow (▼) in the list below to see claims under each argument.

1.Argument: Agencies are accountable to the executive and legislative branches

2.Argument: Agencies engage in constitutional interpretation without oversight by the political branches

3.Argument: Agencies operate outside of the bounds of political control

4.Argument: Independent agencies are politically accountable

5.Argument: Independent agencies are unconstitutionally insulated from control by the elected executive

A timeline of agency control

See also:Agency dynamics: A timeline

This section contains a timeline of significant events related to agency control of the administrative state. For a full timeline related to agency control,click here.

Scholarly work related to agency control of administrative agencies

See also:List of scholarly work pertaining to agency dynamics

This page contains briefs on scholarly works related to agency control of administrative agencies covered on Ballotpedia. For a list of scholarly work related to agency control,click here.

Explore more pillars

• Five pillars of the administrative state: Executive control
• Five pillars of the administrative state: Judicial control
• Five pillars of the administrative state: Legislative control
• Five pillars of the administrative state: Public control

See also

• Ballotpedia's administrative state coverage
• Administrative State Index

Footnotes

v • e The Administrative State Main The Administrative State Project main page •Administrative State Project Index •Glossary of administrative state terms •Quotes about the administrative state •Administrative state •Rulemaking •Deference •Adjudication •Nondelegation doctrine •Ballotpedia's administrative state legislation tracker Pillars Agency control •Executive control •Judicial control •Legislative control •Public control Reporting Changes to the Federal Register •Completed OIRA review of federal administrative agency rules •Federal agency rules repealed under the Congressional Review Act •Historical additions to the Federal Register, 1936-2016 Laws Administrative Procedure Act •Antiquities Act •Civil Service Reform Act •Clayton Antitrust Act •Communications Act of 1934 •Congressional Review Act •Electronic Freedom of Information Act •Federal Food, Drug, and Cosmetic Act of 1938 •Federal Housekeeping Statute •Federal Reserve Act •Federal Trade Commission Act of 1914 •Freedom of Information Act •Government in the Sunshine Act •Independent Offices Appropriations Act of 1952 •Information Quality Act •Interstate Commerce Act •National Labor Relations Act •Paperwork Reduction Act •Pendleton Act •Privacy Act of 1974 •Regulatory Flexibility Act •REINS Act •REINS Act (Wisconsin) •Securities Act of 1933 •Securities Exchange Act of 1934 •Sherman Antitrust Act •Small Business Regulatory Enforcement Fairness Act •Truth in Regulating Act •Unfunded Mandates Reform Act Cases Abbott Laboratories v. Gardner •A.L.A. Schechter Poultry Corp. v. United States •Association of Data Processing Service Organizations v. Camp •Auer v. Robbins •Chevron v. Natural Resources Defense Council •Citizens to Preserve Overton Park v. Volpe •Federal Trade Commission (FTC) v. Standard Oil Company of California •Field v. Clark •Food and Drug Administration v. Brown and Williamson Tobacco Corporation •Humphrey's Executor v. United States •Immigration and Naturalization Service (INS) v. Chadha •J.W. Hampton Jr. & Company v. United States •Lucia v. SEC •Marshall v. Barlow's •Massachusetts v. Environmental Protection Agency •Mistretta v. United States •National Federation of Independent Business (NFIB) v. Sebelius •National Labor Relations Board v. Noel Canning Company •National Labor Relations Board v. Sears, Roebuck & Co. •Panama Refining Co. v. Ryan •Securities and Exchange Commission v. Chenery Corporation •Skidmore v. Swift & Co. •United States v. Lopez •United States v. Western Pacific Railroad Co. •Universal Camera Corporation v. National Labor Relations Board •Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council •Wayman v. Southard •Weyerhaeuser Company v. United States Fish and Wildlife Service •Whitman v. American Trucking Associations •Wickard v. Filburn •Wiener v. United States Terms Adjudication (administrative state) •Administrative judge •Administrative law •Administrative law judge •Administrative state •Arbitrary-or-capricious test •Auer deference •Barrier to entry •Bootleggers and Baptists •Chevron deference (doctrine) •Civil servant •Civil service •Code of Federal Regulations •Codify (administrative state) •Comment period •Compliance costs •Congressional Record •Coordination (administrative state) •Deference (administrative state) •Direct and indirect costs (administrative state) •Enabling statute •Ex parte communication (administrative state) •Executive agency •Federal law •Federal Register •Federalism •Final rule •Formal rulemaking •Formalism (law) •Functionalism (law) •Guidance (administrative state) •Hybrid rulemaking •Incorporation by reference •Independent federal agency •Informal rulemaking •Joint resolution of disapproval (administrative state) •Major rule •Negotiated rulemaking •Nondelegation doctrine •OIRA prompt letter •Organic statute •Pragmatism (law) •Precautionary principle •Promulgate •Proposed rule •Publication rulemaking •Regulatory budget •Regulatory capture •Regulatory dark matter •Regulatory impact analysis •Regulatory policy officer •Regulatory reform officer •Regulatory review •Rent seeking •Retrospective regulatory review •Risk assessment (administrative state) •Rulemaking •Separation of powers •Significant regulatory action •Skidmore deference •Statutory authority •Substantive law and procedural law •Sue and settle •Sunset provision •Unified Agenda of Federal Regulatory and Deregulatory Actions •United States Code •United States Statutes at Large Bibliography "Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000) "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017) "Constitutionalism after the New Deal" by Cass R. Sunstein (1987) Federalist No. 23 by Alexander Hamilton (1787) "From Administrative State to Constitutional Government" by Joseph Postell (2012) "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002) "Rulemaking as Legislating" by Kathryn Watts (2015) "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016) "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017) "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007) "The Rise and Rise of the Administrative State" by Gary Lawson (1994) "The Study of Administration" by Woodrow Wilson (1887) "The Threat to Liberty" by Steven F. Hayward (2017) "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008) Agencies Administrative Conference of the United States •United States Civil Service Commission •U.S. Government Accountability Office •U.S. Office of Information and Regulatory Affairs •U.S. Office of Management and Budget