Glossary of administrative state terms

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The following is a glossary of terms related to the administrative state. Each term on this page is accompanied, where available, by a brief definition. Terms include links to more comprehensive definition pages; these terms are written in blue text.

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Terms

General administrative state terms

  • Adjudication: agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute and, in some cases, may set agency policy.[1][2]
  • Administrative Conference of the United States: an independent federal agency tasked with developing recommendations to improve federal administrative processes.[3]
  • Administrative law: the laws, executive documents, and judicial decisions that concern the operation of government agencies as well as the regulations and decisions issued by such agencies.
  • Administrative law judge: the presiding judge in a federal administrative hearing. An ALJ serves as both the judge and the jury in an administrative hearing, similar to the role of a judge in a civil bench trial.[4]
  • Administrative Procedure Act: a federal law passed in 1946 establishing uniform procedures for federal agencies to propose and issue regulations.[5]
  • Advance notice of proposed rulemaking: a preliminary version of a prospective federal agency regulation.[6][7]
  • Appointment and removal power: the authority of an executive to appoint and remove officials in the various branches vested in its authority to do so.
  • Arbitrary-or-capricious test: a legal standard of review used by judges to assess the actions of administrative agencies.
  • Auer deference: a principle of judicial review of federal agency actions that requires a federal court to yield to an agency's interpretation of an ambiguous regulation that the agency has promulgated.[8]
  • Barrier to entry: a startup cost or other obstacle for a firm attempting to enter an existing industry or market in which the firm was not previously participating. Barriers to entry may be inherent to an industry (sometimes known as structural or natural barriers) or deliberately erected by incumbent firms or the government (sometimes known as strategic or artificial barriers).
  • Bootleggers and Baptists: the theory holds that regulatory schemes tend to emerge and endure with the support of "coalitions of economic and moral interests that desire a common goal."[9]
  • Chevron deference (doctrine): an administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer.
  • Civil Service Reform Act: reaffirmed the merit system selection process of the competitive civil service, decentralized administrative personnel functions, and codified a number of changes to workforce practices and procedures, including the prohibition of certain discriminatory practices.
  • Code of Federal Regulations: created by a 1937 amendment to the Federal Register Act of 1935 in order to codify, or convert into a legal record, all federal administrative agency regulations.
  • Codified: a term used to describe the process of converting a proposed rule or regulation into law. Rules are codified through inclusion in a legal code, a government's official record of laws.[10]
  • Comment period: the process in which members of the public can submit written feedback to a federal agency regarding a proposed rule.[11]
  • Congressional Record: a published record of the proceedings of the United States Congress.[12]
  • Congressional Review Act: a federal law passed in 1996 creating a review period during which Congress, by passing a joint resolution that is then signed by the president, can overturn new agency rules and block agencies from creating similar rules in the future.[13]
  • De novo: a standard of judicial review in which a federal court examines an executive agency action, such as a regulation or an adjudicatory decision, without deference to a previous interpretation of the underlying statute in question.[14][15]
  • Deference: applies when a federal court yields to an agency's interpretation of either a statute that Congress instructed the agency to administer or a regulation promulgated by the agency.
  • Direct and indirect costs (administrative state): refer to a set of cost accounting principles that the government requires organizations to use, including on tax forms and when accounting for government grant spending
  • Direct final rule: a federal administrative regulation that advanced through the proposed rule and public comment stages of the rulemaking process and is published in the Federal Register with a scheduled effective date.[16][17]
  • Due process: a legal theory outlining restrictions on the government's ability to infringe upon constitutional liberties.
  • Economically significant rule: an agency rule that has had or may have a large impact on the economy, environment, public health, state or local governments or communities, or may cause other issues such as conflicts or inconsistencies with other agencies or rules or with the priorities of the president.[18][19][20]
  • Enabling statute: legislation that confers new powers on an entity or permits something that was previously prohibited or not allowed.[21][22][23] In the context of administrative law, an enabling statute establishes the powers and responsibilities of a government agency.[24]
  • Ex parte communication: a communication during the rulemaking process between a member of the public and a federal agency employee or administrative law judge regarding a proposed agency action.
  • Executive agency: a federal agency that is housed under the Executive Office of the President or one of the 15 Cabinet departments within the executive branch.[25][26] There is no definitive number of executive agencies.[27]
  • Executive order: a formal command handed down from the president to federal agencies within the executive branch.[28]
  • Executive Order 12866: a presidential executive order issued by President Bill Clinton in 1993 establishing principles and processes to govern federal agency rulemaking, regulatory planning, and regulatory review.[18][19][20]
  • Federal Register: a legal newspaper published every federal working day by the National Archives and Records Administration (NARA) and the Government Publishing Office (GPO).[3]
  • Final rule: a federal administrative regulation that advanced through the proposed rule and public comment stages of the rulemaking process and is published in the Federal Register with a scheduled effective date.[16][17]
  • Formal rulemaking: a rulemaking process that enables federal agencies to amend, repeal, or create an administrative regulation.
  • Formalism: views law as a distinct political institution determined by legal rules derived from authoritative sources, like constitutions and statutes.
  • Functionalism: a method of analyzing the law and explaining legal behavior as well as a method of interpreting constitutions and statutes. Legal functionalism explains and analyzes the law based on the functions that law and legal rules serve for society, the branches of government, interest groups, and other legal actors.
  • Guidance: used to describe a variety of documents created by administrative agencies to explain, interpret, or advise interested parties about rules, statutes, and procedures.
  • Hybrid rulemaking: a rulemaking process that enables federal agencies to amend, repeal, or create an administrative regulation.
  • Incorporation by reference: the practice of declaring that the entire text of a referenced document is included in another document without reprinting the text of the cited document.
  • Independent federal agency: a term used to describe a federal agency that operates with some degree of autonomy from the executive branch.[29][25]
  • Informal rulemaking: a rulemaking process that enables federal agencies to amend, repeal, or create an administrative regulation.
  • Interim final rule: a federal administrative regulation that advanced through the proposed rule and public comment stages of the rulemaking process and is published in the Federal Register with a scheduled effective date.[16][17]
  • Joint Resolution: a measure, introduced and considered by Congress under the terms of the Congressional Review Act of 1996, that overturns a new federal agency rule and blocks the issuing agency from creating similar rules in the future without specific authorization.
  • Judicial review: the power to interpret the laws and overturn any law or government action inconsistent with the United States Constitution.
  • Legislative veto: a resolution by a legislative body that invalidates an action by the executive branch.[14]
  • Living Constitution: commonly used to describe the belief that the Constitution of the United States has relevant meaning beyond the original text and is an evolving document that changes over time.[30]
  • Major questions doctrine: an administrative law principle that Congress must provide clear authorization to an agency before the agency can issue regulations on matters of economic or political significance.[31]
  • Major rule: a rule issued by an agency that has had or may have a large impact on some aspect of the economy, such as prices, costs, competition, employment, or investment. It is a legal term defined by the Congressional Review Act.[32][33][34]
  • Midnight rulemaking: informal rules that federal agencies adopt at the end of presidential administrations.[35][36][32][33][13][37][38]
  • Negotiated rulemaking: a supplementary rulemaking tool that allows federal agencies and stakeholders to build consensus on a proposed rule prior to beginning the informal rulemaking process.
  • Nondelegation doctrine: a principle in constitutional and administrative law that holds that Congress cannot delegate its legislative powers to executive agencies or private entities.
  • Notice of proposed rulemaking: a preliminary version of a prospective federal agency regulation.
  • Office of Management and Budget: executive agency formed in 1970 to oversee federal agencies and executive branch operations, and coordinating and reviewing agency regulations.[39]
  • Office of Information and Regulatory Affairs: responsible for reviewing and coordinating what it deems all significant regulatory actions made by federal agencies, excluding those defined as independent federal agencies.[40][39][41]
  • OIRA prompt letter: a letter issued to a federal agency by the Office of Information and Regulatory Affairs that proposes a recommendation for new regulatory action.
  • Organic statute: legislation that establishes and authorizes a government entity, such as an agency or a territory.
  • Originalism: a legal principle that relies on historical review of the intent of a law or constitutional provision at the time of passage.
  • Political question doctrine: disputes that courts determine are best resolved by the politically accountable branches of government: the president and Congress.[42][43]
  • Pragmatism: views law as produced by specific social contexts and focuses on the consequences of judicial decisions.
  • Promulgate: the process of enacting an administrative final rule as an administrative regulation.
  • Proposed rule: a preliminary version of a prospective federal agency regulation.
  • Publication rulemaking: a rulemaking procedure that allows federal agencies to bypass the informal rulemaking process and directly implement certain rules through publication in the Federal Register.
  • Regulatory capture: a situation in which a regulated entity or industry exerts a strong influence over the government bodies or officials tasked with regulating that entity or industry.
  • Regulatory dark matter: a term coined by policy analyst Clyde Wayne Crews Jr. to describe, in his words, "executive branch and federal agency proclamations and issuances such as memoranda, guidance documents, bulletins, circulars, announcements and the like with practical if not always technically legally binding regulatory effect."[44][45]
  • Regulatory impact analysis: a process used by regulators and other government officials to assess the anticipated costs and benefits of a regulation.
  • Regulatory policy officer: a role assigned by the head of a federal administrative agency to a member of that agency's staff, with the responsibility of overseeing the agency's rulemaking process and reporting to the agency head.
  • Regulatory review: processes used by Congress, the president, and the courts to oversee the rules, regulations, and other policies issued by federal agencies.
  • Rent seeking: the practice of an individual or organization seeking an economic benefit through politics and public policy.
  • Retrospective regulatory review: processes used by regulatory agencies, as well as the president, Congress, state executives, and state legislatures, to determine if existing regulations should be retained, modified, or repealed.
  • Rulemaking: a process that enables federal agencies to amend, repeal, or create an administrative regulation. The most common rulemaking process is informal rulemaking, which solicits written public feedback on proposed rules during a comment period.
  • Separation of powers: a system of government that distributes the powers and functions of government among separate and independent entities. The separation of powers is sometimes referred to as a system of checks and balances because the Constitution provides each branch with certain powers over the other two branches.
  • Significant rule: an agency rule that has had or may have a large impact on the economy, environment, public health, state or local governments or communities, or may cause other issues such as conflicts or inconsistencies with other agencies or rules or with the priorities of the president.
  • Skidmore deference: a principle of judicial review of federal agency actions that applies when a federal court yields to a federal agency's interpretation of a statute administered by the agency according to the agency's ability to demonstrate persuasive reasoning.
  • Standard of review: the level of deference that a federal court affords to a lower court ruling or a determination from an administrative agency when reviewing a case on appeal.[46][47][48][49]
  • Standing: a legal doctrine applied by Article III courts to determine whether a prospective plaintiff in a case has suffered a legal injury as the result of an action by the defendant.[50][51]
  • Statutory authority: the powers and duties assigned to a government official or agency by a legislatively enacted statute, known as a statutory grant of authority.
  • Substantive law and procedural law: terms used to describe and distinguish two different types of law.
  • Sue and settle: describes cases in which a federal agency is sued by an interested party, declines to defend itself in court, and negotiates a settlement with the plaintiff in a non-adversarial process.
  • Sunset provision: a statute or provision of a statute establishing a date on which an agency, law, or benefit will expire without specific legislative action, usually in the form of formal reauthorization by Congress or a state legislature.
  • United States Code: a published collection of the laws of the United States federal government, prepared and released once every six years by the Office of the Law Revision Counsel (OLRC) of the U.S. House of Representatives.
  • United States Statutes at Large: a publication of the United States federal government, defined by the U.S. Government Publishing Office as "the permanent collection of all laws and resolutions enacted during each session of Congress."
  • Vermont Yankee II: a metaphor used by scholars and commentators of the administrative state to describe potential rulings from the United States Supreme Court that would stop undue lower court interference in the administrative process.
  • Voigt deference (administrative state): an administrative law principle that directs federal courts to defer to state agency interpretations of ambiguous federal regulations.

Footnotes

  1. ↑ Washington and Lee Law Review, "Agency Adjudication, the Importance of Facts, and the Limitations of Labels," March 1, 2000
  2. ↑ Administrative Conference of the United States, "Informal Agency Adjudication, Committee on Adjudication, Proposed Recommendation for Committee," October 20, 2016
  3. ↑ 3.0 3.1 Administrative Conference of the United States, "About the Administrative Conference of the United States (ACUS)," accessed July 17, 2017 Cite error: Invalid <ref> tag; name "about" defined multiple times with different content
  4. ↑ JUSTIA, "Administrative Hearings," accessed July 21, 2017
  5. ↑ The Regulatory Group, "Regulatory Glossary," accessed August 4, 2017
  6. ↑ Office of Information and Regulatory Affairs, "Regulations and the Rulemaking Process," accessed July 24, 2017
  7. ↑ U.S. Food and Drug Administration, "FDA Rules and Regulations," accessed July 24, 2017
  8. ↑ The Georgetown Law Journal, "The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan," January 1, 2008
  9. ↑ Cato Institute, "Bootleggers and Baptists: How Economic Forces and Moral Persuasion Interact to Shape Regulatory Politics," October 9, 2014
  10. ↑ American Legal Publishing, "Why Codify?" accessed July 20, 2017
  11. ↑ Federal Register, "A Guide to the Rulemaking Process," accessed August 17, 2017
  12. ↑ United States Senate, "Congressional Records," accessed August 16, 2017
  13. ↑ 13.0 13.1 Smithsonian Magazine, "What Is the Congressional Review Act?" February 10, 2017
  14. ↑ 14.0 14.1 Legal Information Institute, "De novo" accessed July 20, 2017 Cite error: Invalid <ref> tag; name "law" defined multiple times with different content
  15. ↑ Quimbee, "Plenary Review," accessed August 15, 2019
  16. ↑ 16.0 16.1 16.2 Office of Information and Regulatory Affairs, "Regulations and the Rulemaking Process," accessed July 24, 2017
  17. ↑ 17.0 17.1 17.2 The Regulatory Group, "Regulatory Glossary," accessed August 2, 2017
  18. ↑ 18.0 18.1 Federal Register, "Executive Order 12866," October 4, 1993
  19. ↑ 19.0 19.1 Center for Effective Government, "Executive Order 12866," accessed July 20, 2017
  20. ↑ 20.0 20.1 Environmental Protection Agency, "Summary of Executive Order 12866 - Regulatory Planning and Review," accessed July 20, 2017
  21. ↑ US Legal, "Enabling Statute Law and Legal Definition," accessed August 13, 2017
  22. ↑ Merriam-Webster, "Enabling statute," accessed August 13, 2017
  23. ↑ Oxford Reference, "Enabling statute," accessed August 13, 2017
  24. ↑ Intelligence Law, "Lesson 4: Statutory Law," 2012
  25. ↑ 25.0 25.1 Administrative Conference of the United States, "Sourcebook of United States Executive Agencies," May 2013
  26. ↑ JUSTIA, "Legislative Agencies," accessed October 12, 2017
  27. ↑ US History.org, "8b. The Organization of the Bureaucracy," accessed August 9, 2019
  28. ↑ PBS, "Your cheat sheet for executive orders, memorandums and proclamations," accessed May 1, 2017
  29. ↑ 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)
  30. ↑ US Legal, "Living Constitution Law & Legal Definition," accessed January 8, 2016
  31. ↑ Congressional Review Service, "The Major Questions Doctrine," November 2, 2022
  32. ↑ 32.0 32.1 U.S. News, "Democrats Push to Repeal Congressional Review Act," June 1, 2017
  33. ↑ 33.0 33.1 The Hill, "The Congressional Review Act and a deregulatory agenda for Trump's second year," March 31, 2017
  34. ↑ Congressional Research Service, "The Congressional Review Act: Frequently Asked Questions," November 17, 2016
  35. ↑ Mercatus Center, "The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters," 2001
  36. ↑ Mercatus Center, "Beware the Surge of Midnight Regulations," July 17, 2012
  37. ↑ The White House, "Remarks by President Biden Signing Three Congressional Review Act Bills into Law: S.J.Res.13; S.J.Res.14; and S.J.Res.15," June 30, 2021
  38. ↑ George Washington University Regulatory Studies Center, "Congressional Review Act ," accessed December 18, 2020
  39. ↑ 39.0 39.1 Office of Management and Budget, "The Mission and Structure of the Office of Management and Budget," archived December 19, 2016
  40. ↑ Office of Management and Budget, "Office of Information and Regulatory Affairs," accessed July 18, 2017
  41. ↑ RegInfo.gov, "Frequently Asked Questions," accessed August 3, 2017
  42. ↑ Congressional Research Service, "The Political Question Doctrine: Justiciability and the Separation of Powers," December 23, 2014
  43. ↑ American University Law Review, "The Political Question Doctrines," Vol. 67, 2017, accessed October 25, 2018
  44. ↑ SSRN, "Mapping Washington's Lawlessness: A Preliminary Inventory of Regulatory Dark Matter (2017 Edition)," February 18, 2016
  45. ↑ Competitive Enterprise Institute, "Regulatory Dark Matter," accessed October 2, 2017
  46. ↑ United States Court of Appeals for the Ninth Circuit, "Standard of review—definitions," accessed August 20, 2018
  47. ↑ The Federal Circuit Bar Journal, "Standards of Appellate Review in the Federal Circuit: Substance and Semantics," accessed August 20, 2018
  48. ↑ JUSTIA, "Administrative Law," accessed May 30, 2019
  49. ↑ U.S. Legal, "Standards Of Review Of Agency Actions," accessed May 30, 2019
  50. ↑ Quimbee, "Standing," accessed June 29, 2020
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