Research On The Rulemaking And Adjudication Under Administrative Procedure Act

The timing of the enactment of Administrative Procedure Act(APA)was only after the enormous proliferation of administrative governance under the New Deal,and there was a strong need for systematic controls in agency behavior.§ 553 and § 554 of the APA separately provided the Rulemaking and Adjudication,which can be regarded as the legislative function and judicial function of an agency.With the growth of the APA,the functions of agencies became more and more unambiguous with the effect of precedents.The APA itself can no longer sever the law practice well.The outcome of rulemaking is rule or regulation which can be applied in future cases.Most of the time,they use Notice and Comment procedure which can protect interested parties from suffering,so the key point of rulemaking is Notice and Comment(N&C).Not all rules made by agencies,however,are subject to N&C.For instance,interpretive rules,procedure rules and general statement of police are exempt from N&C.An order is after adjudication which deals with individual case.Basically,an order can only bind the parties to the case.To protect the procedure right of a party,APA requires hearing on the record.Hearing is the key to adjudication.With large amount of precedents,the function of rulemaking and adjudication overlapped.Some agencies charged with enforcing regulatory statutes rely almost exclusively on decisions made in adjudicative proceedings for making policy to be applied in future cases.Chenery was the first case referring to the overlapping.(holing that agencies are generally free to decide whether to formulate policy through rulemaking or adjudication.)Which way to choose to develop a policy is always a question in dispute,National Labor Relation Board has been engaging in rulemaking cases several times.With the newly-adopted recommendation of“Evidentiary Hearings Not Required by the Administrative” and “Aggregate Agency Adjudication”,this paper try to find out the attitude of Federal courts towards the Choices with the analysis of classic precedents and latest cases.Also,trying to figure out the possibility for adjudication becoming a proper way to develop policies like rulemaking and what can we learn from it.