Administrative Law, Process and Procedure Project
Encyclopedia
The Administrative Law, Process and Procedure Project (the Project) is a bipartisan undertaking of the Committee on the Judiciary
of the House of Representatives
of the United States Congress
. It consists of a comprehensive study of the state of administrative law, process and procedure in the United States
. A description of the Project was included in the Judiciary Committee's Oversight Plan for the 109th Congress, as approved by the Committee on January 26, 2005. The Project will culminate with the preparation of a detailed report with recommendations for legislative proposals and suggested areas for further research and analysis to be considered by the Administrative Conference of the United States
(ACUS). House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-WI) and Ranking Member John Conyers
(D-MI) requested the Congressional Research Service
(CRS) to assist Representative Chris Cannon
(R-UT), the Chairman of the Subcommittee on Commercial and Administrative Law
(CAL), in conducting the Project, which is anticipated to be completed by September 2006.
From a systemic perspective, ACUS also helped to focus attention on the need for the federal government to be made more efficient, less big, and more accountable. It was viewed as one of the leading federal proponents of encouraging practical ways to reduce administrative litigation. In this regard, ACUS actively promoted information-technology initiatives, such as developing methods by which the public could participate electronically in agency rulemaking proceedings to increase public access to government information and foster greater openness in government operations.
During the course of his testimony on the reauthorization of ACUS in 2004, U.S. Supreme Court Justice Antonin Scalia
, a former ACUS Chair, described ACUS as “a worthwhile organization” that offered “a unique combination of talents from the academic world, from within the executive branch . . . and, thirdly, from the private bar, especially lawyers particularly familiar with administrative law.” He observed, “I did not know another organization that so effectively combined the best talent from each of those areas.” In addition, he said that the Conference was “an enormous bargain.” Likewise, U.S. Supreme Court Justice Stephen Breyer
cited the “huge” savings to the public as a result of ACUS’s recommendations. Noting that ACUS was “a matter of good Government,” he stated, “I very much hope you reauthorize the Administrative Conference.” Both Justices agreed that there were various matters that a reauthorized ACUS could examine. These included assessing the value of having agencies use teleconferencing facilities and the need to create a regulatory process that promotes sound science. Through Representative Cannon's leadership, ACUS was reauthorized in the 108th Congress.
in light of that Act’s tenth anniversary. Also in 2006, Subcommittee held a hearing on how the Regulatory Flexibility Act has been implemented since its enactment in 1980 and whether proposed legislation, such as H.R. 682, the “Regulatory Flexibility Improvements Act” would adequately address certain perceived weaknesses in the RFA. In the summer of 2006, the CAL Subcommittee held a hearing on the 60th anniversary of the Administrative Procedure Act
discussing the question as to if the Act is still effective in the 21st Century.
of the University of Pennsylvania Law School
, examined the Executive Branch’s efforts to implement e-rulemaking across the federal government. A particular focus of this program was on the ongoing development of a government-wide Federal Docket Management System (FDMS). Presentations at the symposium were given by government managers involved in the development of the FDMS as well as by academic researchers studying e-rulemaking. Representatives from various agencies, including the Office of Management and Budget (OMB), the United States Environmental Protection Agency
, and the Government Accountability Office (GAO
), discussed the current progress of e-rulemaking. In addition, academics reported on current and prospective research endeavors dealing with certain aspects of e-rulemaking. The program offered a structured dialogue that addressed the challenges and opportunities for implementing e-rulemaking, the outcomes achieved by e-rulemaking to date, and strategies that could be used in the future to improve the rulemaking process through application of information technology.
The second symposium, held at American University
, examined the role of science in the rulemaking process. The symposium consisted of four panels: OMB’s recent initiatives on regulatory science, science and the judicial review of rulemaking, science advisory panels and rulemaking, and government agencies’ science capabilities.
A further symposium is planned for September 11, 2006 at CRS
in Washington, D.C. It will provide a forum for the presentation of the results of various studies conducted as part of the Project and examine such issues as the respective roles that the judicial, executive, and legislative branches play in their review of rules.
United States House Committee on the Judiciary
The U.S. House Committee on the Judiciary, also called the House Judiciary Committee, is a standing committee of the United States House of Representatives. It is charged with overseeing the administration of justice within the federal courts, administrative agencies and Federal law enforcement...
of the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
of the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
. It consists of a comprehensive study of the state of administrative law, process and procedure in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. A description of the Project was included in the Judiciary Committee's Oversight Plan for the 109th Congress, as approved by the Committee on January 26, 2005. The Project will culminate with the preparation of a detailed report with recommendations for legislative proposals and suggested areas for further research and analysis to be considered by the Administrative Conference of the United States
Administrative Conference of the United States
The Administrative Conference of the United States is an independent agency of the United States government established by the Administrative Conference Act of 1964. It is also considered to be a federal advisory committee...
(ACUS). House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-WI) and Ranking Member John Conyers
John Conyers
John Conyers, Jr. is the U.S. Representative for , serving since 1965 . He is a member of the Democratic Party...
(D-MI) requested the Congressional Research Service
Congressional Research Service
The Congressional Research Service , known as "Congress's think tank", is the public policy research arm of the United States Congress. As a legislative branch agency within the Library of Congress, CRS works exclusively and directly for Members of Congress, their Committees and staff on a...
(CRS) to assist Representative Chris Cannon
Chris Cannon
Christopher Black "Chris" Cannon was a member of the United States House of Representatives, for the Republican Party, representing the third district of Utah from 1997 - 2009....
(R-UT), the Chairman of the Subcommittee on Commercial and Administrative Law
United States House Judiciary Subcommittee on Commercial and Administrative Law
The Subcommittee on Commercial and Administrative Law is a former subcommittees of the United States House Committee on the Judiciary. It was incorporated into the Subcommittee on Courts, Commercial and Administrative Law during the 112th Congress....
(CAL), in conducting the Project, which is anticipated to be completed by September 2006.
Relationship between the project and ACUS
One of the principal goals of the Project is to further substantiate the need to reactivate the Administrative Conference of the United States (ACUS), a nonpartisan "private-public think tank" that proposed valuable recommendations which improved administrative aspects of regulatory law and practice. Over its 28-year existence, ACUS served as an independent agency charged with studying "the efficiency, adequacy, and fairness of the administrative procedure used by administrative agencies in carrying out administrative programs." Most of its approximately 200 recommendations were implemented, and they, in turn, helped save taxpayers many millions of dollars. ACUS was considered to be "an invaluable mechanism set into place by Congress to improve federal administrative law." A commentator observed that "[a]s long as there is a need for regulatory reform, there is a need for something like the Administrative Conference." ACUS is credited with playing an important role in improving the nation's legal system by issuing recommendations designed "to eliminate excessive litigation costs and long delays." For example, Congress, in response to an ACUS recommendation, passed the Administrative Dispute Resolution Act in 1990, which established a framework for agencies to resolve administrative litigation through alternative dispute resolution. Among its "most influential government-wide recommendations" were ACUS's proposals facilitating judicial review of agency decisions and eliminating various technical impediments to such review. It also issued proposals leading to the enactment of the Negotiated Rulemaking Act, which encourages consensual resolution through a process that takes into account the needs of various affected interests. ACUS, in addition, recommended a model administrative civil penalty statute that has served as the basis for "numerous pieces of legislation."From a systemic perspective, ACUS also helped to focus attention on the need for the federal government to be made more efficient, less big, and more accountable. It was viewed as one of the leading federal proponents of encouraging practical ways to reduce administrative litigation. In this regard, ACUS actively promoted information-technology initiatives, such as developing methods by which the public could participate electronically in agency rulemaking proceedings to increase public access to government information and foster greater openness in government operations.
During the course of his testimony on the reauthorization of ACUS in 2004, U.S. Supreme Court Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, a former ACUS Chair, described ACUS as “a worthwhile organization” that offered “a unique combination of talents from the academic world, from within the executive branch . . . and, thirdly, from the private bar, especially lawyers particularly familiar with administrative law.” He observed, “I did not know another organization that so effectively combined the best talent from each of those areas.” In addition, he said that the Conference was “an enormous bargain.” Likewise, U.S. Supreme Court Justice Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
cited the “huge” savings to the public as a result of ACUS’s recommendations. Noting that ACUS was “a matter of good Government,” he stated, “I very much hope you reauthorize the Administrative Conference.” Both Justices agreed that there were various matters that a reauthorized ACUS could examine. These included assessing the value of having agencies use teleconferencing facilities and the need to create a regulatory process that promotes sound science. Through Representative Cannon's leadership, ACUS was reauthorized in the 108th Congress.
Hearings
To date, the CAL Subcommittee has held a series of hearings in anticipation of and as part of the Project. Following its May 20, 2004 oversight hearing on the reauthorization of the ACUS at which Justices Antonin Scalia and Stephen Breyer testified, the Subcommittee conducted a second hearing on ACUS that examined further the reasons why there is a need to reauthorize ACUS. In 2005, the Subcommittee held a hearing on the status of the Project. In 2006, the Subcommittee held a hearing that focused on the Congressional Review ActCongressional Review Act
The Congressional Review Act , was enacted by the United States Congress as section 251 of the Contract with America Advancement Act of 1996 , also known as the Small Business Regulatory Enforcement Fairness Act of 1996...
in light of that Act’s tenth anniversary. Also in 2006, Subcommittee held a hearing on how the Regulatory Flexibility Act has been implemented since its enactment in 1980 and whether proposed legislation, such as H.R. 682, the “Regulatory Flexibility Improvements Act” would adequately address certain perceived weaknesses in the RFA. In the summer of 2006, the CAL Subcommittee held a hearing on the 60th anniversary of the Administrative Procedure Act
Administrative Procedure Act
The Administrative Procedure Act , , is the United States federal law that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review...
discussing the question as to if the Act is still effective in the 21st Century.
Symposia
In addition to conducting hearings, the CAL Subcommittee to date has cosponsored two symposia as part of the Project. The first symposium, held in December 2005, was on Federal E-Government Initiatives. This program, chaired by Professor Cary CoglianeseCary Coglianese
Cary Coglianese is Edward B. Shils Professor of Law and professor of political science, deputy dean of the University of Pennsylvania Law School, and director of the Coglianese specializes in the study of regulation and regulatory processes with a particular emphasis on the empirical evaluation of...
of the University of Pennsylvania Law School
University of Pennsylvania Law School
The University of Pennsylvania Law School, located in Philadelphia, Pennsylvania, is the law school of the University of Pennsylvania. A member of the Ivy League, it is among the oldest and most selective law schools in the nation. It is currently ranked 7th overall by U.S. News & World Report,...
, examined the Executive Branch’s efforts to implement e-rulemaking across the federal government. A particular focus of this program was on the ongoing development of a government-wide Federal Docket Management System (FDMS). Presentations at the symposium were given by government managers involved in the development of the FDMS as well as by academic researchers studying e-rulemaking. Representatives from various agencies, including the Office of Management and Budget (OMB), the United States Environmental Protection Agency
United States Environmental Protection Agency
The U.S. Environmental Protection Agency is an agency of the federal government of the United States charged with protecting human health and the environment, by writing and enforcing regulations based on laws passed by Congress...
, and the Government Accountability Office (GAO
Gao
Gao is a town in eastern Mali on the River Niger lying ESE of Timbuktu. Situated on the left bank of the river at the junction with the Tilemsi valley, it is the capital of the Gao Region and had a population of 86,663 in 2009....
), discussed the current progress of e-rulemaking. In addition, academics reported on current and prospective research endeavors dealing with certain aspects of e-rulemaking. The program offered a structured dialogue that addressed the challenges and opportunities for implementing e-rulemaking, the outcomes achieved by e-rulemaking to date, and strategies that could be used in the future to improve the rulemaking process through application of information technology.
The second symposium, held at American University
American University
American University is a private, Methodist, liberal arts, and research university in Washington, D.C. The university was chartered by an Act of Congress on December 5, 1892 as "The American University", which was approved by President Benjamin Harrison on February 24, 1893...
, examined the role of science in the rulemaking process. The symposium consisted of four panels: OMB’s recent initiatives on regulatory science, science and the judicial review of rulemaking, science advisory panels and rulemaking, and government agencies’ science capabilities.
A further symposium is planned for September 11, 2006 at CRS
CRS
-Science and technology:* Cambridge Reference Sequence, used in mitochondrial DNA testing* Canada Remote Systems, a now-defunct bulletin board system based in Toronto* Carrier Routing System, a large-scale core router...
in Washington, D.C. It will provide a forum for the presentation of the results of various studies conducted as part of the Project and examine such issues as the respective roles that the judicial, executive, and legislative branches play in their review of rules.