Administrative Procedure Act - Historical Background

Historical Background

Beginning in 1933, President Franklin D. Roosevelt and the Democratic Congress enacted several statutes that created new federal agencies as part of the New Deal legislative plan, designed to deliver the United States from the social and economic hardship of the Great Depression. However, following the Great Depression and World War II the Congress became concerned about the expanding powers that federal agencies possessed, resulting in the enactment of the APA to regulate and standardize federal agency procedures.

In a law journal article on the history of the APA, Professor George Shepard discusses the contentious political environment from which the APA was born. Shepard claims that Roosevelt’s opponents and supporters fought over passage of the APA "in a pitched political battle for the life of the New Deal" itself. Shepard does note, however, that a legislative balance was struck with the APA, expressing "the nation's decision to permit extensive government, but to avoid dictatorship and central planning."

A 1946 U.S. House of Representatives report discusses the 10-year period of "painstaking and detailed study and drafting" that went into the APA. Because of rapid growth in the administrative regulation of private conduct, Roosevelt ordered several studies of administrative methods and conduct during the early part of his four-term presidency. Based on one study, Roosevelt commented that the practice of creating administrative agencies with the authority to perform both legislative and judicial work "threatens to develop a fourth branch of government for which there is no sanction in the Constitution."

In 1939, Roosevelt requested that Attorney General Frank Murphy form a committee to investigate practices and procedures in American administrative law and suggest improvements. That committee's report, contains detailed information about the development and procedures of the federal agencies.

The Final Report defined a federal agency as a governmental unit with "the power to determine...private rights and obligations" by rulemaking or adjudication. The Final Report applied that definition to the largest units of the federal government, and identified "19 executive departments and 18 independent agencies." If various subdivisions of the larger units were considered, the total number of federal agencies at that time increased to 51. In reviewing the history of federal agencies, the Final Report noted that almost all agencies had undergone changes in name and political function.

Of the 51 federal agencies discussed in the Final Report, 11 were created by statute prior to the Civil War. From 1865 to 1900, six new agencies were created. Most notable was the formation of the Interstate Commerce Commission, created in 1887 in response to widespread criticism of the railroad industry. The period of 1900 to 1940, however, saw the greatest expansion of federal administrative power, with 35 new agencies created by statute. Eighteen of these were created during the 1930s, from statutes enacted as part of Roosevelt's New Deal. The Final Report made several recommendations about standardizing administrative procedures, but Congress delayed action because the U.S. entered World War II.

Since 2005, the House Judiciary Committee has been undertaking an Administrative Law, Process and Procedure Project to determine what, if any, changes should be made to the Administrative Procedure Act.