allowed to offer evidence of their suitability for
early release from INCARCERATION. The strict rules
observed in a courtroom do not apply to these
hearings, and the board’s decisions must acc-
ount for the public interest as well as the rights
of the prisoners.
FURTHER READINGS
Aman, Alfred C., Jr., and William T. Mayton. 2001 Aman
and Mayton’s Hornbook on Administrative Law. 2d ed.
Eagan, MN: West.
Barksdale, Yvette M. 1993. “The Presidency and Adminis-
trative Value Selection.” American Univ. Law Review 42.
Diver, Colin S. 1987. “The Uneasy Constitutional Status of
the Administrative Agencies, Part II: Presidential
Oversight of Regulatory Decisionmaking: Commentary:
Presidential Powers.” American Univ. Law Review 36.
Pierce, Richard J. 2002 (updated 2008). Administrative Law
Treatise. 4th ed. Frederick, MD: Aspen.
U.S. Government Manual Web site. Available online
at (accessed
July 3, 2009).
CROSS REFERENCES
Administrative Conference of the United States; Adminis-
trative Law and Procedure; Bureaucracy; National Industrial
Recovery Act of 1933; Schechter Poultry Corp. v. United
States. See also entries for specific federal agencies (e.g.,
Food and Drug Administration).
ADMINISTRATIVE BOARD
A comprehensive phrase that can refer to any
administrative agency but usually means a public
agency that holds hearings.

trative agencies , private lawyers, university
professors, various federal officials, and other
experts in administrative law and government.
These experts collectively conducted continuing
studies of selected prob lems that existed in the
procedures of federal administrative agencies.
The specific charge of ACUS was to harness the
experience and judgment of the administrative
agency specialists to improve the fairness and
effectiveness of administrative procedures and
functions.
From 1968 to 1995 the ACUS issued
approximately two hundred recommendations,
the majority of which were at least partially
implemented. In 1995 Congress terminated
funding for the ACUS, and it ceased operation.
FURTHER READINGS
“Administrative Conference of the United States” (Sympo-
sium). 1998. Arizona State Law Journal 30 (spring).
Funk, William. “R.I.P. A.C.U.S.” ABA Network: Adminis-
trative & Regulatory Law News. Available online at
www.abanet.org/adminlaw/news/vol21no2/acus_rip.
html (acc essed Mar. 31, 2010).
“Recommendations of the Administrative Conference of the
United States.” ABA Administrative Procedure Data-
base. Available online at www.law.fsu.edu/library/
admin/acus/acustoc.html (accessed Mar. 31, 2010).
CROSS REFERENCES
Administrative Agency; Administrative Law and Procedure.
ADMINISTRATIVE DISCRETION

tive agencies, as distinguished from judicial
procedure, which applies to courts.
The Administrative Procedure Act (5 U.S.C.
§§ 551-706) governs the practice and proceed-
ings before federal administrative agencies. The
procedural rules and regulations of most federal
agencies are set forth in the
CODE OF FEDERAL
REGULATIONS
(CFR).
The fundamental challenge of administra-
tive law is in designing a system of checks that
will minimize the risks of bureaucratic arbitrar-
iness and overreaching, while preserving for the
agencies the flexibility that they need in order to
act effectively. Administrative law thus seeks to
limit the powers and actions of agencies and to
fix their place in U.S. scheme of government
and law. It contrasts with traditional notions
that the three branches of the U.S. government
must be kept separate, that they must not
delegate their responsibilities to bureaucrats,
and that the formalities of due process must be
observed.
Separation of Powers
The U.S. Constitu tion establishes a three-part
system of government, consisting of the Legis-
lative Branch, which makes the laws; the
EXECUTIVE BRANCH, which carries out or enforces
the laws; and the Judicial Branch, which

independent agency
that enforces its rules
without need for
approval from
Congress or the
executive branch of
the government.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
ADMINISTRATIVE LAW AND PROCEDURE 109
can issue stop orders against corporate issuers of
securities. The SEC acts as judge and jury when
it conducts adjudicatory hearings to determine
violations or to prescribe punishment. Although
SEC commissioners are appointed by the presi-
dent subject to the approval of the Senate, the
SEC is an independent agency. It is n ot part
of Congress, nor is it part of any executive
department.
Combining the three functions of govern-
ment allows an age ncy to tackle a problem and
to get the job done most efficiently, but this
combination has not b een accepted without
a struggle. Some observers have taken the
position that the basic structure of the admini-
strative law system is an unconstitutional
violation of the principle of the
SEPARATION OF
POWERS

ing Company sued to prevent federal officials
from enforcing the prohibition, known as the
“hot oil” la w (Panama Refining Co. v. Ryan, 293
U.S. 388, 55 S. Ct. 241, 79 L. Ed. 446 [1935]).
The U.S. Supreme Court found the law to be
unconstitutional. Congress could have passed a
law prohibiting interstate shipments of hot oil,
but it did not do so; instead, it gave that power
to the president. This instance has been called
a case of delegation run amok because the law
had no clear standards defining when and how
the president should use the authority that the
statute delegated to him.
Four months later, the Court invalidated a
criminal prosecution for violation of the Live
Poultry Code, an unfair-competition law that
President Roosevelt had signed in 1934 pur-
suant to another section of the National
Industrial Recov ery Act. This was the case of
Schechter Poultry v. United States, 295 U.S. 495,
55 S. Ct. 837, 79 L. Ed. 1570 (1935). The
problem in this case was not that the delegation
of authority was ill-defined, but that it seemed
limitless. The president was given the authority
to “formulate codes of fair competition” for any
industry if these codes would “tend to effectuate
the policy” of the law. Comprehensive codes
were created, establishing an elaborate regula-
tion of prices, minimum wages, and maximum
hours for different kinds of businesses. But

the permit. The Court determined that the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
110 ADMINISTRATIVE LAW AND PROCEDURE
CLEAN WATER ACT, 33 U.S.C. § 1251 et seq., had
delegated authority in the specific instance
presented by the case to the Corps of Engineers.
Due Process of Law
The Fifth and Fourteenth Amendments guaran-
tee that the federal governmen t and the state
governments, respectively, will not deprive a
person of his or her life, liberty, or property
without
DUE PROCESS OF LAW. An administrative
agency thus may not deprive anyone of life,
liberty, or property without providing that
person with a reasonable opportunity, appro-
priate under the circumstances, to challenge the
agency’s action. People must be given fair
warning of the limits that an agency will place
on their actions, federal courts routinely uphold
very broad delegations of authority. When
reviewing administrative agency actions, courts
ask whether the agency afforded those under
its jurisdiction due process of law as guaranteed
by the U.S. Constitution.
The U.S. Supreme Court has held it
improper for a state agency to den y w elfare
benefits to applicants who meet the conditions
for entitlement to those benefits as defined by
the legislature. The state must afford due

radical restructuring. In the 1970s the Atomic
Energy Commission (AEC) took the politically
unpopular position of promoting
NUCLEAR
POWER
, while underemphasizing safety and
environmental protection. It paid the price
when some of its promotional functions were
transferred to a newly created
DEPARTMENT OF
ENERGY
, and the AEC was restructured into the
NUCLEAR REGULATORY COMMISSION, which was
responsible for the former agency’s regulatory
duties.
Federal administrative agencies must be
responsive to legislative and executive oversight
mechanisms. During the 1970s many members
of Congress began to feel that the normal
process of legislation was too cumbersome
for effective control of administrative action.
They devised a solution called the legislative
VETO. Legislative vetoes took a variety of forms,
but most of them directed agencies to transmit
final administrative rules to Congress for
review before they became effective. Just as this
approach was gaining in popularity and use, the
U.S. Supreme Court declared the legislative
veto unconstitutional. This ruling involved the
IMMIGRATION and Nationality Act (8 U.S.C. §

in the next year, or could even see certain
programs eliminated. A legislature may also
enact a
SUNSET PROVISION, which provides for
automatic termination of an agency after a
stated time unless the legislature is convinced
that the need for the agency continues.
Sometimes, a sunset provision is written into
the statute that creates a particular agency,
but a general sunset law may terminate any
agency that cannot periodically demonstrate
its effectiveness. A useful agency can always
be revived or retained by the enactment of a
new statute.
Like Congress, the president uses a variety
of powers and techniques to oversee and
influence the operations of administrative
agencies. The Appointments Clause of the
Constitution (art. II, §2, cl. 2) states that the
president may generally appoint all “officers of
the United States,” with the
ADVICE AND CONSENT
of the Senate. Under the authority of this
provision, presidents often appoint agency
heads who share their political agenda. The
president’s power to remove an agency head
depends on whether the agency is an indepen-
dent agency or a cabinet department. Indepen-
dent agencies tend to be multimember boards
and commissions, such as the Securities and

REORGANIZATION PLAN to Congress, transferring
functions from one department to another.
This law recognizes that although responsibility
for the organization and structure of the Execu-
tive Branch is vested in Congress, the president
needs flexibility to carry out executive duties.
Public opinion is another forceful weap on
against unbridled agency action. Some jurisdic-
tions of the United States have created speci al
public offices to investigate complaints about
administrative misconduct. Investigators hold-
ing these offices, called ombudsmen, usually
have broad authority to evaluate individual
complaints, to intercede on behalf of belea-
guered victims of red tape, and to make reports
or recommendations.
The Development of Administrative
Procedure Law
Administrative agencies were established to do
the government’s work in a simpler and more
direct manner than the legislature could do by
enacting a law or the courts could do by
applying that law in various cases. Because they
pursue their actions less formally, agencies do
not follow the
CIVIL PROCEDURE that is set up for
courts. Instead, the law of administrative
procedure has developed to ensure that agencies
do not abuse their authority even though they
use simplified proce dures.

is harmed by a particular agency decision.
Judicial review has evolved over a period of
years into a complex system of statu tory,
constitutional, and judicial doctrines that define
the proper
BOUNDARIES of this system of
oversight. The trend of judicial decisions and
the Administrative Procedure Act is to make
judicial review more widely and easily available.
How far can a court go in examining an
agency decision? The reviewing court may be
completely precluded from testing the merits of
an agency action, or it ma y be free to decide the
issues
DE NOVO, that is, without deference to the
agency’s determination. In general, administra-
tive agencies make either formal or informal
decisions, and courts have different standards
for reviewing each type.
Informal Agency Action Most of the work
done by agencies is accomplished with informal
procedures. For example , a person who applies
for a driver’s license does not need or want a full
trial in court in order to be found qualified. So
long as the motor vehicle department follows
standard, fair procedures, and processes the
application promptly, most people will be happy.
Agencies take informal action in a variety of
settings. The
SOCIAL SECURITY Administration

done, so that an order is issued for or against a
party who appears for a decision. Rule making
looks to the future; adjudication looks at the past.
Where either of these formal procedures is used,
the agency will usually give interested or affected
persons notice and an opportunity to be heard
before a final rule or order is issued.
Rule making Administrative agencies pro-
mulgate three types of rules: procedural,
interpretative, and legislative. Procedural rules
identify the agency’s organization and methods
of operation. Interpretative rules are issued to
show how the agency intends to apply the law.
They range from in formal policy statements
announced in a press release to authoritative
rules that bind the agency in the future and are
issued only after the agency has given the public
an opportunity to be heard on the subject.
Legislative rules are like statutes enacted by a
legislature. Agencies can promulgate legislative
rules only if the legislature has given them this
authority.
Employees of the
Internal Revenue
Service process tax
returns using
informal procedures
that make their jobs
easier and less time-
consuming. If a

Adjudication The procedures that admin-
istrative agencies use to adjudicate individual
claims or cases are diverse. Like trials, these
hearings resolve disputed questions of fact,
determining policy in a specific factual sett-
ing and ordering compliance with laws and
regulations. Although often not as formal as
courtroom trials, administrative hearings are
extremely important. Far more hearings are
held before agencies every year than are trials
in courts. Adjudicative hearings concern a
variety of subjects, such as individual claims
for worker’s compensation, welfare, or Social
Security benefits, in addition to multimillion-
dollar disputes about whether busines s mergers
will violate antitrust rulings. These proceedings
may be called hearings, adjudications, or adju-
dicatory proceedings. Their final disposition
is called an administrative order.
Many administrative proceedings appear to
be just like courtroom trials. Most are open
to the public and are conducted in an orderly
and dignified manner. Typically, a proceeding
begins with a complaint filed by the agency,
much as a civil trial begins with a complaint
prepared by the
PLAINTIFF. After the RESPONDENT
answers, each side may conduct discovery of
the other’s evidence and prehearing confer-
ences. A

tions and legal decisions based upon the
evidence presented and the law governing the
dispute. The specific duties of an ALJ in an
individual agency depend upon the powers
delegated to the agency in the respective
ENABLING STATUTE and procedural regulations
promulgated by the agency. For instance, the
Office of Inspector General is empowered to
impose civil penalties against a person who
makes false statements or representations with
respect to Social Security benefits. Under
regulations promulgated by the Social Security
Administration (20 C.F.R. § 498.204 [2009]), the
ALJ may make a number of decisions regarding
the submission of evidence or the examination of
witnesses; rule on motions and other procedural
matters; and render a
SUMMARY JUDGMENT where
appropriate. However, the ALJ may not rule
as invalid a federal statutory or regulatory
provision, enjoin agency officials, or review
discretionary acts by the inspector general.
An ALJ’s decision is often subject to review
by a board or commission of the entire agency
before parties may appeal the decision to a
federal court. For example, labor disputes
governed by the National Labor Relatio ns Act
are first heard by ALJs of the National Labor
Relations Board (NLRB). The ALJ’s decision
may be appealed to the five members of the

a court to review the actio n taken by an agency
depends on the answers to several questions.
The first question is whether the person
bringing the action has standing (i.e., the
LEGAL
RIGHT
) to bring the suit. Section 702 of the
Administrative Procedure Act allows court
review for any person who is adversely affected
or aggrieved by agency action within the
meaning of a relevant statute. When the U.S.
Supreme Court reviewed section 702 in Associa-
tion of Data Processing Service Organizations v.
Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d
184 (1970), the Court said that for the plaintiff to
have standing to seek judicial review of adminis-
trative action, two questions must be answered
affirmatively: (1) Has the complainant alleged an
“injury in fact”?; and (2) Is the interest that the
complainant seeks to protect “arguably within
the zone of interests to be protected or regulated
by the statute or constitutional guarantee in
question”?
Even though an agency’s decision is review-
able and the plaintiff has standing to litigate, the
plaintiff still may be unable to obtain judicial
review if he or she has brou ght the action at the
wrong time. The aggrieved person must exhaust
all other avenues of relief before the dispute is
ripe for judicial determination. The doctrines

SET ASIDE. The court also may set aside
an agency decision that is clearly wrong.
The court usually will accept the agency’s
findings of fact, but it is free to determine how
the law will be applied to those facts. It will
look at the whole record of the administrative
proceeding and will take into account the
agency’s expertise in the matter. The court will
not upset agency decisions for harmless errors
that do not change the outcome of the case. If
the question at issue has been committed to
agency discretion, the court may consider whether
the agency has exercised its discretion. If the
agency has not done so, then the court may
order the agency to look at the situat ion and
make a decision. The Administrative Procedure
Act allows courts to
OVERRULE an agency action
that is found to be “arbitrary, capricious, an
ABUSE OF DISCRETION, or otherwise not in accor-
dance with law.”
FURTHER READINGS
Aman, Alfred C., and William Mayton. 2001. Administrative
Law. 2d ed. St. Paul, Minn.: West Group
Beerman, Jack M. 2006. Administrative Law. New York:
Aspen.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ADMINISTRATIVE LAW AND PROCEDURE 115
Lubbers, Jeffrey S., ed. 2003. Developments in Administrative
Law and Regulatory Practice (annual). Chicago, Ill.:

UNITED STATES
, the Administrative Office plays an
important part in determining the extent and
character of the very support it provides.
The Director
The director of the Administrative Office is the
administrative officer of all the federal courts
except the Supreme Court. The Judicial Confer-
ence of the United States—the federal agency
charged with overseeing federal judicial matters—
supervises and guides the director’swork.The
director and the deputy director are appointed by
the
SUPREME COURT OF THE UNITED STATES.
The director is required to perform a variety
of tasks. First and foremost, the director must
supervise all administrative matters relating to
the offices of clerks and other clerical and
administrative personnel of the federal courts.
These administrative matters can range from
performance policies and pay scales to guide-
lines on clerical procedures.
The director is charged with providing many
reports to various governmental bodies. With the
aid of the deputy director and the Audit Office
and other operatives, the director must examine
court dockets, determine the needs of the various
courts, and report the results four times per year
to the chief judges of the circuits. These reports
allow the federal courts to analyze and plan for

tain programs for the certification and utiliza-
tion of court interpreters and the provision of
special interpretation services in the courts.
Other duties may be assigned to the director by
the Supreme Court or the Judicial Conference
of the United States.
As of 2009, a total of seven individuals have
served as direc tor of the Administrative Office .
James C. Duff took over the position in 2006
from Leonidas Ralph Meachum after the latter
had served as director for 21 years.
Probation Officers
The Probation Division of the Administrative
Office supervises the accounts and practices of
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
116 ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS
the federal probation offices. However, primary
control of probation practices and procedures is
left to the district courts served by the probation
offices. The Probation Division establishes pre-
trial services in the federal district courts
according to the Pretrial Services Act of 1982
(18 U.S.C.A. § 3152). The pretrial service offices
report to their respective courts with information
on the pretrial release of persons charged with
federal offenses. These offices also supervise
criminal defendants released to their custody.
With the Bureau of Prisons of the
DEPART-
MENT OF JUSTICE

tions to the Judicial Conference on logistical
concerns such as the geographic placement of
bankruptcy courts. The director must consider
whether additional bankruptcy judges should be
recommended to Congress; the director is also
in charge of determining the staff needs of
bankruptcy judges and clerks.
Federal Magistrates
Under the Federal Magistrates Act as amended
in 1979 (28 U.S.C.A. § 631), the director of the
Administrative Office must answer to Congress
and the Judicial Conference on the affairs of
federal magistrates. Federal magistrates are
appointed by federal district court judges, and
their job is to reduce each case to its essence
before it reaches the district courts. Federal
proceedings are expensive; by ruling on pretrial
motions and issuing various orders at the
pretrial stage, federal magistrates help preserve
judicial resources.
Federal magistrates do not have the full
range of judicial powers available to other
federal judges. For example, they cannot preside
over
FELONY trials. Federal magistrates may
conduct civil or
MISDEMEANOR criminal trials,
but they normally conduct pretrial proceedings
in both criminal and civil cases. Owing to their
special function, federal magistrates operate

district courts to establish federal
PUBLIC DEFENDER
and federal community defender organizations.
Establishing these organizations can be done in
districts where at least 200 persons annually
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS 117