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Five pillars of the administrative state: Agency control
| What are the five pillars of the administrative state? Ballotpedia's five pillars of the administrative state provide a framework for understanding the authority, influence, and actions of administrative agencies, as well as the policies and arguments surrounding them. The five pillars focus on the control of administrative agencies related to the (1) legislative, (2) executive, and (3) judicial branches of government, (4) the public, and (5) other agencies or sub-agencies. |
| Five Pillars of the Administrative State |
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| Agency control |
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•Court cases |
| More pillars |
| •Agency control • Executive control •Judicial control • Legislative control • Public control |
| Click here for more coverage of the administrative state on Ballotpedia.
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| Click here to access Ballotpedia's administrative state legislation tracker. |
Agency control is one of five pillars used to understand Ballotpedia's coverage of the administrative state. It focuses on the balance of power among administrative agencies.
The agency 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 as independent 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, including rulemaking and adjudication 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.
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. Some independent 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:
- Rulemaking: The process by which federal agencies create, amend, or repeal regulations. Informal rulemaking allows public comments on proposed rules, while formal 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 and interpretive rules, directly in the Federal Register without the informal 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 a proposed rule before the informal rulemaking process begins. Also known as regulatory negotiation or reg-neg, it aims to improve communication, reduce litigation, and enhance efficiency.[9][10]
- Adjudication: The process agencies use to resolve disputes outside of rulemaking, 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]
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.
This section contains selected court cases related to agency control of the administrative state.
- Humphrey's Executor v. United States (1935): The U.S. Supreme Court described independent 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): The U.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): The U.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): The U.S. Supreme Court allowed privately employed hearing officers to serve as administrative judges in adjudication.
- Immigration and Naturalization Service (INS) v. Chadha (1983): The U.S. Supreme Court held that the legislative veto, which gave Congress oversight powers over specific agency rulemaking actions in some cases, was unconstitutional.
- Iowa League of Cities v. Environmental Protection Agency (2013): The United 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 through guidance documents.
- FCC v. Prometheus Radio Project (2021): The U.S. Supreme Court held that federal agencies can pass the arbitrary-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.
This section contains important legal doctrines related to agency control of the administrative state.
- The Administrative Procedure Act (APA) is a federal law passed in 1946 establishing uniform procedures for federal agencies to propose and issue regulations, a process known as rulemaking. The APA also addresses policy statements and licenses issued by agencies and provides for judicial review of agency adjudications and other final decisions.[12][13][14]
For a full list of laws related to the administrative state, click here.
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 the 50-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
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 identified three 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 lists enacted 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 concerns administrative 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 lists enacted 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 lists enacted legislation related to sunset review in 2024 and 2025 (click on a bill for more information):[18]
Ballotpedia has identified four major types of reform categories related to agency control:
- Judicial oversight of agencies: This category includes reforms that shift adjudicative authority and oversight from executive agencies toward the judicial branch, particularly Article III courts.
- Rulemaking and regulatory review: This category encompasses reforms designed to change how regulations are proposed, reviewed, or enforced, with a focus on increasing transparency, oversight, and accountability.
- 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
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
- Claim: The combination of functions within agencies does not create an unconstitutional risk of bias
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
- Claim: Informal rulemaking fuels the growth of the administrative state
- Claim: Informal rulemaking lacks sufficient procedural protections
2. Argument: Informal procedures are sufficient to govern agency action
- Claim: The U.S. Supreme Court supports the increased use of informal adjudication
- Claim: Administrative Conference of the United States supports increased use of informal rulemaking
3. Argument: The Administrative Procedure Act is out of date and should be modernized
- Claim: The APA does not reflect current agency practices
- Claim: Calls for APA reform date to the mid-twentieth century
5. Argument: Agency theory and practice should align
- Claim: Agencies sidestep the rulemaking process by setting policy through adjudication
- Claim: Agencies abuse guidance to issue binding regulations
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
3. Argument: Agencies operate outside of the bounds of political control
4. Argument: Independent agencies are politically accountable
- Claim: Cause-removal protections prevent the executive from controlling independent agencies
- Claim: Independent agencies evade political accountability by circumventing OIRA review
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.
- 1887
Congress established the Interstate Commerce Commission (ICC) as the nation's first independent federal agency.
- 1935
In Humphrey's Executor v. United States, the U.S. Supreme Court described independent federal agencies as quasi-legislative and quasi-judicial entities and affirmed protections against presidential removal.
- 1946
Congress passed the Administrative Procedure Act (APA), setting uniform procedures for federal agency rulemaking and adjudication.
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
Footnotes
- ↑ 1.0 1.1 Administrative Conference of the United States, "Sourcebook of United States Executive Agencies," May 2013
- ↑ JUSTIA, "Legislative Agencies," accessed October 12, 2017
- ↑ US History.org, "8b. The Organization of the Bureaucracy," accessed August 9, 2019
- ↑ Breger, Marshall J. and Edles, Gary J. (2015). Independent Agencies in the United States: Law, Structure, and Politics New York, New York: Oxford University Press. (pages 1-7)
- ↑ JUSTIA, "Independent Agencies," accessed July 5, 2018
- ↑ Congressional Research Service, "A Brief Overview of Rulemaking and Judicial Review," March 21, 2012
- ↑ Duke Law Review, "The Rulemaking Continuum," accessed August 28, 2017
- ↑ Rocky Mountain Mineral Law Foundation, "REGULATION WITHOUT RULEMAKING: THE FORCE AND AUTHORITY OF INFORMAL AGENCY ACTION," accessed August 28, 2017
- ↑ 9.0 9.1 Administrative Conference of the United States, "Negotiated Rulemaking and Other Options for Public Engagement," June 16, 2017 Cite error: Invalid
<ref>tag; name "acus" defined multiple times with different content - ↑ U.S. Department of Agriculture, "What is Negotiated Rulemaking?" accessed August 24, 2017
- ↑ Washington and Lee Law Review, "Agency Adjudication, the Importance of Facts, and the Limitations of Labels," March 1, 2000
- ↑ The Regulatory Group, "Regulatory Glossary," accessed August 4, 2017
- ↑ Electronic Privacy Information Center, "The Administrative Procedure Act (APA)," accessed August 14, 2017
- ↑ Environmental Protection Agency, "Summary of the Administrative Procedure Act," accessed August 14, 2017
- ↑ Ballotpedia Legislation, "Search results for enacted/adopted administrative state bills (2024–2025 sessions)", accessed June 2, 2025
- ↑ Ballotpedia Administrative State Legislation Tracker, "Bill search: Agency structure and authority," accessed on January 28, 2025
- ↑ Ballotpedia Administrative State Legislation Tracker, "Bill search: Administrative judges," accessed on January 28, 2025
- ↑ Ballotpedia Administrative State Legislation Tracker, "Bill search: Sunset review," accessed on January 28, 2025
