Adjudication = deciding about an individual’s rights based on individual facts e.g. driver’s license.
=> Constitutional due process rights apply to adjudication, not rulemaking
Rulemaking = decision about the rights of everyone or a larger group, based on general/group facts e.g. car emissions standards.
=> constitutional protection here is meant to be democracy
formal adjudication apllies:
‘in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing’ (some exclusions)
So whether formal adjudication rules apply depends on the wording of another statute
Basic entitlements of persons entitled to agency hearing:
Notice of time and place of the hearing
Basic information of legal and factual claims associated with the case
Opportunity to consider and to respond (and to be represented by counsel)
Full transcript (word by word) must be made, as record for subsequent judicial review
Administrative Law Judges ( called that since 1978)
=> formal adjudication
are not Art III judges
ALJs are officials who do formal adjudication under the APA
The APA provides for some protections for their independence etc.
Hearing Officers
=> informal adjudication
Their independence etc. is not protected under either the APA or the Constitution
They operate in terms of other statutes in specific areas (esp. benefits programs)
Most administrative adjudication in the US is done by HOs, outside the APA
formal rulemaking
APA never requires formal rulemaking
Only if another statute uses ‘with opportunity…for oral presentation’ language
court-like procedure
Requirements are so burdensome that agencies will often prefer to stop making rules
Used to be more common; now rare: probably less than 2% of rulemaking is formal (one study: 587 out of 30 583 cases of rulemaking, 2003-2010)
informal rulemaking => in practise: more important
= ‘without opportunity...for oral presentation’
This means a notice and comment procedure (5 U.S.C. 553)
Notice: Public notice of proposed rule or ‘a description of the subjects and issues involved’ in the proposed rulemaking exercise
Comment: Agency must hear from ‘interested persons’; it need not hold a hearing but must at least accept ‘written data, views or arguments’
An agency ist reviewed on the reasons it gave at the time of the decision
=> Courts must uphold the appropriate findings of fact and the appropriate exercise of discretion by an agency.
= Trying to explain why institutions/officials act the way they do, based on their incentives.
Congress (the Principal) delegates power to an agency (the Agent).
=> When what actually happens, under a statute, starts to move away from what the majority that passed the statute wanted to happen.
Agency Drift = The agency implements the statute in line with its own preferences, and this is determinative.
Political Drift = one part of the political group that passed the statute starts to implement it in its own way, and succeeds.
e.g. the President, who was part of the political group behind the statute, uses his/her position as head of the executive to affect its implementation
Last changeda month ago