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Agency dynamics: States that prohibit administrative agencies from making rules in ways that do not follow established rulemaking procedures (2020)

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This survey is part of a series of 50-state surveys examining the five pillars key to understanding the administrative state
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Disclaimer: The research presented on this page was completed in 2020. It has not been regularly updated since its completion. This page is likely outdated and may be incomplete.

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This page contains information from a 2020 Ballotpedia survey about administrative agency dynamics, one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Ballotpedia reviewed all 50 state constitutions and administrative procedures acts (APAs) to determine which states prohibited administrative agencies from making rules in ways that did not follow established rulemaking procedures as of 2020.

When administrative agencies made rules in ways that did not comply with the rulemaking procedures established by the state APA, the provisions identified in this survey gave people ways to challenge those agency rules in state courts. Some states allowed people to ask state courts whether an agency rule is valid. Other provisions said that rules made contrary to rulemaking requirements were void.

According to the Ballotpedia survey, '45 state APAs included provisions that prohibited administrative agencies from making rules in ways that did not follow established rulemaking procedures, and the other 5 states did not have provisions in their APAs or constitutions prohibiting agencies from making procedurally deficient rules as of September 2020. Thus, most states provided a way for people to take agencies to court for not following established rulemaking procedures.

In 2025, Ballotpedia updated the pillar system used to understand the main areas of debate about the nature and scope of the administrative state. Click here to learn more about this updated structure and to see Ballotpedia's current content related to the administrative state.



This page features the following sections:

Background and methodology

Background

For this survey, Ballotpedia examined whether states prohibited administrative agencies from making rules in ways that did not follow established rulemaking procedures. Language in many state APAs said that rules that do not comply with rulemaking procedures are void. Those provisions allow people to challenge such rules in state courts.

Some states allowed people to seek declaratory judgments, which are rulings from state courts about whether an agency rule is valid. Other provisions said that rules made contrary to listed rulemaking provisions are void.

Rulemaking is the process that enables administrative agencies to amend, repeal, or create rules or regulations. States set up procedures for agencies to follow when they make or change rules. States usually require agencies to follow strict rulemaking procedures unless there is an emergency. In emergency cases, many states specify abbreviated steps for agencies to follow.

Methodology

In 2020, Ballotpedia examined all 50 state constitutions and Administrative Procedure Acts (APAs) to see whether states prohibited administrative agencies from making rules in ways that did not follow established rulemaking procedures. Ballotpedia reviewed each provision involving agency rulemaking and judicial review by state courts to see if states gave people a way to challenge agencies when they failed to follow rulemaking procedures.

Administrative Procedure Acts (APAs) govern the procedures state administrative agencies must follow to issue regulations and adjudicate disputes, varied among the 50 states, but many offered fewer procedural protections for those accused of wrongdoing than a defendant would have in a courtroom.

Other state laws might have prohibited administrative agencies from making rules in ways that did not follow established rulemaking procedures, but those were beyond the scope of this survey.

To see the specific legal provisions Ballotpedia used to categorize each state, click here.

Summary of findings

Ballotpedia's survey of state constitutions and APAs produced the following key takeaways (as of September 2020):

  • 45 states had APAs with provisions that prohibited administrative agencies from making rules in ways that did not follow established rulemaking procedures.
  • 5 states had APAs and constitutions that did not appear to prohibit administrative agencies from making rules in ways that did not follow established rulemaking procedures.

Results: States that prohibited administrative agencies from making rules in ways that did not follow established rulemaking procedures

The table below includes each state in alphabetical order and indicates those with specific provisions in their constitutions or APAs that prohibited administrative agencies from making rules in ways that did not follow established rulemaking procedures.

  • DefeatedA means that the state APA or constitution prohibited administrative agencies from making rules in ways that did not follow established rulemaking procedures
  • —— means that the state APA and constitution did not prohibit administrative agencies from making rules in ways that did not follow established rulemaking procedures

Other state laws that might have prohibited administrative agencies from making rules in ways that did not follow established rulemaking procedures are beyond the scope of this survey.

State Constitution or APA provisions that prohibited administrative agencies from making rules in ways that did not follow established rulemaking procedures
Alabama DefeatedA
Alaska DefeatedA
Arizona DefeatedA
Arkansas DefeatedA
California DefeatedA
Colorado DefeatedA
Connecticut DefeatedA
Delaware ——
Florida DefeatedA
Georgia DefeatedA
Hawaii DefeatedA
Idaho DefeatedA
Illinois DefeatedA
Indiana DefeatedA
Iowa DefeatedA
Kansas ——
Kentucky DefeatedA
Louisiana DefeatedA
Maine DefeatedA
Maryland DefeatedA
Massachusetts DefeatedA
Michigan DefeatedA
Minnesota DefeatedA
Mississippi DefeatedA
Missouri DefeatedA
Montana DefeatedA
Nebraska DefeatedA
Nevada DefeatedA
New Hampshire DefeatedA
New Jersey DefeatedA
New Mexico DefeatedA
New York DefeatedA
North Carolina ——
North Dakota DefeatedA
Ohio DefeatedA
Oklahoma DefeatedA
Oregon DefeatedA
Pennsylvania ——
Rhode Island DefeatedA
South Carolina DefeatedA
South Dakota DefeatedA
Tennessee DefeatedA
Texas DefeatedA
Utah ——
Vermont DefeatedA
Virginia DefeatedA
Washington DefeatedA
West Virginia DefeatedA
Wisconsin DefeatedA
Wyoming DefeatedA

See also

Footnotes

v • e
The Administrative State
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Pillars
Reporting
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
Agencies
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