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Five pillars of the administrative state: Public 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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| Public 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. |
Public control of agencies is one of five pillars used to understand Ballotpedia's coverage of the administrative state. It focuses on the balance of power between administrative agencies and the public.
Public control is a central concept in the debate over the nature and scope of the administrative state and represents how administrative agencies relate to the people and organizations subject to their rules and regulations. The primary components of the public control pillar are public participation and procedural rights. This includes topics such as individual due process, standing, adjudication and enforcement proceedings, and public participation in the rulemaking process. This article includes information about the following topics:
Key terms related to public control of the administrative state: This section contains important terms and definitions related to the public control of the administrative state.
Key laws and court cases related to public control of the administrative state: This section contains important laws and policies related to the public control of the administrative state.
- Court cases : This section contains significant court rulings related to the public control of the administrative state.
- Federal laws: This section contains key federal policies regarding public 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 public control of the administrative state.
Recent legislation related to public control of the administrative state: This section tracks recent legislation by states about the public control of the administrative state.
Reform proposals related to public control of the administrative state: This section contains reform proposals related to the public control of the administrative state.
Major arguments about the public control of the administrative state: This section contains key arguments about the public control of the administrative state.
A timeline of public control: This section contains a timeline of significant events related to public control of the administrative state.
Scholarly work related to public control of administrative agencies: This section contains important legal doctrines related to public control of the administrative state.
This section features a list of significant terms related to public control of the administrative state.
- Due process is a legal theory outlining restrictions on the government's ability to infringe upon constitutional liberties.
- Adjudication, in the context of administrative law, is defined by the Administrative Procedure Act as an "agency process for the formulation of an order." Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between 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.
- Comment period, in the context of administrative rulemaking, refers to a timeframe during the informal rulemaking process in which members of the public can submit written feedback to a federal agency regarding a proposed rule. An agency may choose to hold regulatory hearings, public meetings, or internet webcasts during the comment period to solicit additional responses.
- Standing is 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. In the context of administrative law, plaintiffs seek standing in order to obtain judicial review of what they consider to be a harmful agency action. While some plaintiffs seek to appeal what they consider to be an adverse agency decision issued through the adjudication process, others seek to challenge what they consider to be a harmful agency policy choice determined through adjudication or rulemaking.
This section features a list of significant laws and court cases related to public control of the administrative state and a 50-state survey related to public control.
This section contains selected court cases related to public control of the administrative state.
- Association of Data Processing Service Organizations v. Camp (1970) allowed more people to challenge actions of administrative agencies under the Administrative Procedure Act (APA). In this case, the Supreme Court held that data processors could sue the comptroller of the currency and that Congress had not blocked courts from reviewing the comptroller's actions.
- Goldberg v. Kelly (1970) treated welfare benefits as a form of property. The Supreme Court ruled that state and federal government agencies could only remove welfare benefits after a pre-termination hearing at which recipients could confront witnesses before an impartial adjudicator.
- Thole v. U.S. Bank (2020) held that people have the right to sue in court when they can establish a concrete stake in the outcome of a case which reaffirmed limits on who can challenge actions taken by administrative agencies.
- United States v. Texas (2023) held that states lack standing to challenge the scope of the executive branch's immigration enforcement because the separation of powers limits the judicial branch from directing executive branch enforcement discretion.
For a full list of court cases related to the administrative state, click here.
This section contains important legal doctrines related to public 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.[1][2][3]
- The Freedom of Information Act (FOIA) is a federal law that established policies allowing American citizens to access previously unreleased information maintained by federal government agencies. The law defines agency records subject to full or partial disclosure, outlines mandatory disclosure procedures, and grants nine exemptions to the statute. It was signed into law by President Lyndon Johnson on July 4, 1966, and went into effect the following year.[4][5]
- The Government in the Sunshine Act is a federal law passed in 1976 to amend the Freedom of Information Act and increase transparency in the federal government.[6] It clarified Exemption 3 of FOIA (5 U.S.C. § 552(b)(3).), which dealt with information that could be withheld from publication.[7]
- The Information Quality Act (IQA), also referred to as the Data Quality Act (DQA), is a federal law passed in 2000 requiring the U.S. Office of Management and Budget (OMB) to "provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies." The IQA amended the Paperwork Reduction Act of 1995.[8][9][10][11]
- The Paperwork Reduction Act (PRA) is a federal law that established policies to minimize the burden on individuals, private entities, and local governments associated with information collection requests from federal government agencies. The bill also aimed to improve the quality of information collected by the government and minimize the costs associated with information management. The PRA was signed into law by President Jimmy Carter on December 11, 1980.[12]
- The Privacy Act of 1974 is a federal law regulating the collection and use of personal information by federal executive agencies. It was signed into law by President Gerald Ford at the end of 1974 following the Watergate scandal and growing concerns over the government's use of computers to collect and store the personal information of American citizens.[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.
- Procedural rights: State limits on who can challenge agency adjudication actions in a state court
- Procedural rights: States that require people to exhaust administrative appeals of agency adjudication actions before appealing to state courts
- Procedural rights: States that require agencies to prove rule violators acted knowingly before imposing penalties
- Procedural rights: States that require agencies to meet higher burdens of proof in proportion to the size of monetary penalties they seek to impose
- Procedural rights: States that allow agencies to impose monetary penalties without a court order
- Procedural rights: States that require agencies to follow formal adjudication procedures in administrative hearings
- Procedural rights: States that provide for juries to participate in agency adjudication hearings
- Procedural rights: States that require administrative agencies to accept oral evidence during adjudicative hearings
- Procedural rights: States where administrative agencies must allow people to cross-examine witnesses during adjudicative hearings
- Procedural rights: States that require administrative agencies to provide a transcript of adjudicative hearings
- Procedural rights: States that require administrative agency officers to base decisions on the adjudication record
- Procedural rights: States that require administrative agencies to explain the reasons for all material findings and conclusions in adjudication decisions
- Procedural rights: States that provide for administrative agency leader review of initial adjudication decisions by ALJs or hearing officers
- Procedural rights: States that permit administrative agencies to use informal adjudication procedures
- Procedural rights: States that permit lawyers to represent parties during adjudication proceedings
- Procedural rights: States that require final agency action before parties may appeal to a state court
- Procedural rights: States that define final agency action
- Procedural rights: States that limit ex parte communications between hearing officers and the parties involved in adjudication
- Procedural rights: States that establish training requirements or professional qualifications for ALJs, hearing officers, or other agency officials who preside over adjudications
- Procedural rights: States that place the burden of proof on administrative agencies during adjudication
- Procedural rights: States that require administrative agencies to share the evidence against regulated parties during adjudication
- Procedural rights: States that require agencies to tell people about agency legal authority and what is at issue before a hearing
The following links contain components of the 50-state survey related to public control of the administrative state.
- See also: Administrative State Legislation Tracker
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 public control of the administrative state. To see all proposed legislation related to public control, click here.
Ballotpedia has identified four major legislative categories related to public control:
- Public participation: These bills advance public participation in administrative processes by requiring or modifying procedures for open meetings or comment periods.
- Public disclosure and reporting: These bills implement public disclosure or reporting requirements. They can also exempt agencies from reporting or disclosure requirements.
- Occupational licensing: These bills recognize licensing reciprocity between states or eliminate licensing for an occupation. They may also decrease licensing requirements or associated fees.
- Permitting procedures: These bills propose general permitting procedures (known as general permits or permits by rule) or reduce permitting regulations.
This map shows all enacted legislation from 2024 or 2025 related to public participation, public disclosure and reporting, ccupational licensing, and permitting procedures. To find out more about these bills, https://legislation.ballotpedia.org/admin-state/search?status=Enacted%2FAdopted&category=Occupational%20licensing&category=Public%20disclosure%20and%20reporting&category=Public%20participation&category=Permitting%20procedures&session=2025&session=2024&page=1&view_state=map click here].[15]
Public participation legislation
This legislative approach addresses public participation. Public participation refers to the involvement of individuals and groups in the decision-making processes of government agencies, including opportunities for public comment, hearings, and stakeholder engagement. To see all proposed legislation related to public participation, click here.
This section lists enacted legislation related to public participation in 2024 and 2025 (click on a bill for more information):[16]
Public disclosure and reporting legislation
This legislative approach addresses public disclosure and reporting. Public disclosure and reporting laws require government agencies, officials, or regulated entities to share information with the public, ensuring transparency and accountability in decision-making processes. To see all proposed legislation related to public disclosure and reporting, click here.
This section lists enacted legislation related to public disclosure and reporting in 2024 and 2025 (click on a bill for more information):[17]
Occupational licensing legislation
This legislative approach addresses occupational licensing. Occupational licensing laws regulate entry into certain professions by requiring individuals to obtain a government-issued license, often involving education, training, and examination requirements. These laws aim to ensure public safety and professional competence but can also impact workforce mobility and market competition. To see all proposed legislation related to occupational licensing, click here.
This section lists enacted legislation related to occupational licensing in 2024 and 2025 (click on a bill for more information):[18]
Permitting procedures legislation
This legislative approach addresses permitting procedures. Permitting procedures govern the approval process for businesses, individuals, and organizations seeking authorization to conduct specific activities, such as construction, environmental projects, or professional services. These laws outline application requirements, review timelines, and compliance standards to ensure regulatory oversight while balancing economic and development interests. To see all proposed legislation related to permitting procedures, click here.
This section lists enacted legislation related to permitting procedures in 2024 and 2025 (click on a bill for more information):[19]
Ballotpedia has identified four major types of reform categories related to public control:
- Adjudication procedures and structure: This category focuses on strengthening the fairness, consistency, and integrity of agency adjudication processes.
- Procedural rights and legal protections: This category addresses ways to strengthen individual rights and ensure procedural fairness in administrative enforcement and adjudication.
- Transparency and public access: This category seeks to make agency processes and data more visible and understandable to the public.
- Oversight and structural limitations: This category includes proposals aimed at limiting agency discretion and enhancing structural accountability.
Major arguments about the public control of the administrative state
This section contains key arguments about the public control of the administrative state.
Arguments about standing
Arguments in favor of broad standing to challenge agency actions
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Standing is subjective
- Claim: The subjectivity of standing supports its broad interpretation
- Claim: Standing is subjective because it is a judicial construct aimed at a particular outcome
2. Argument: Broad standing is democratic
- Claim: Broad standing promotes democratic accountability
- Claim: Broad standing allows majorities to seek judicial review of injuries
- Claim: Broad standing allows citizens to challenge agency decisions not to act
3. Argument: Broad standing is constitutional
4. Argument: Broad standing has historical foundations
- Claim: English common law shows that a personal claim of injury was not required to receive standing
- Claim: Limits on standing developed recently and should be challenged
Arguments in favor of limited standing to challenge agency actions
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Limits on standing protect minority rights
- Claim: Limits on standing allow the judiciary to protect the rights of the minority
- Claim: The protection of majority rights should be the responsibility of the political branches, not the courts
- Claim: Limits on standing reserve judicial review for individuals with specific injuries rather than general concerns
2. Argument: Limits on standing support the separation of powers
- Claim: Limits on standing prevent the transfer of the executive power to manage the administrative state to the judiciary
- Claim: Limits on standing prevent judicial overreach
- Claim: Limits on standing safeguard the executive's enforcement authority
3. Argument: Limits on standing promote agency efficiency
4. Argument: Limits on standing strengthen political accountability
Arguments about agency adjudication
Arguments in favor of increased due process protections and procedural rights in agency adjudication
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Due process protections in agency adjudication are unconstitutionally insufficient
- Claim: Adjudication denies constitutional due process protections
- Claim: Adjudication that denies the right to open proceedings fails to satisfy due process
- Claim: Adjudication denies fair notice in criminal proceedings
- Claim: Agency administrative judges are partial to the government in violation of due process
- Claim: Reversal of the burden of proof denies due process by favoring the government
- Claim: Discovery in adjudication favors the government
- Claim: Adjudication requires unconstitutional self-incrimination in criminal proceedings
- Claim: Adjudication denies the right to a jury
2. Argument: Informal adjudication weakens due process
3. Argument: Only APA-qualified ALJs should adjudicate disputes
Arguments in favor of existing due process protections and procedural rights in agency adjudication
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Agency adjudication satisfies due process
- Claim: Due process is satisfied if APA procedures are followed
- Claim: Due process is satisfied if a hearing is held
- Claim: Informal adjudication sets a minimum procedural floor that satisfies due process
- Claim: Adjudication procedures that resemble other commonly used adjudication procedures satisfy due process
- Claim: Adjudication procedures that minimize error costs satisfy due process
- Claim: The use of administrative judges satisfies due process because informal adjudication does not require the use of administrative law judges
- Claim: The constitutional privilege against self-incrimination does not apply to adjudication
- Claim: Open proceedings are not required in agency adjudication
- Claim: A jury is not required to satisfy due process when the executive acts to enforce public rights
3. Argument: Due process requirements are not uniform
Arguments about the judicial review of agency action
Arguments in favor of broad appeals of agency actions to Article III courts
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Due process is strengthened by the broad ability to appeal agency actions
2. Argument: Broad appeals to Article III courts increase agency accountability
- Claim: Article III courts promote public oversight of agency activity
- Claim: Broad appeals of agency action to Article III courts increase opportunities for judicial review of agency action
Arguments in favor of limited appeals of agency actions to Article III courts
- Click the arrow (▼) in the list below to see claims under each argument.
2. Argument: Limited appeals of agency action to Article III courts conserve judicial resources
3. Argument: Limited appeals of agency action to Article III courts protect statutory intent
A timeline of public control
- See also: Procedural rights: A timeline
This section contains a timeline of significant events related to the public control of the administrative state. For a full timeline related to public control, click here.
- 1787
The U.S. Constitution's Bill of Rights stipulates procedural rights and due process protections for individuals in relation to the government. These include the right to due process when an individual is threatened with the loss of life, liberty, or property, as well as protections against unreasonable search and seizure, self-incrimination, double jeopardy, and excessive fines.[20]
- 1868
- 1946
The Administrative Procedure Act (APA) established uniform procedures for federal agency rulemaking and adjudication, ensuring a minimum floor of procedural protections during formal rulemaking and adjudication.[23]
This page contains briefs on scholarly works on public control of administrative agencies covered on Ballotpedia. For a list of scholarly work on public control, click here.
Explore more pillars
- Five pillars of the administrative state: Agency control
- Five pillars of the administrative state: Executive control
- Five pillars of the administrative state: Judicial control
- Five pillars of the administrative state: Legislative control
See also
Footnotes
- ↑ 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
- ↑ Branscomb, Anne (1994). Who Owns Information?: From Privacy To Public Access. Section 552 – (a)4(F): BasicBooks.
- ↑ Encyclopedia Britannica, "Freedom of Information Act," accessed February 5, 2018
- ↑ Government Publishing Office, "Public Law 94-409," accessed January 16, 2018
- ↑ Department of Justice, "Exemption 3," accessed January 17, 2018
- ↑ Congressional Research Service, "The Information Quality Act: OMB’s Guidance and Initial Implementation," August 19, 2004
- ↑ Bergeson & Campbell, P.C., "The Information Quality Act," April 2003
- ↑ FindLaw, "Federal Agencies Subject to Data Quality Act," accessed December 28, 2017
- ↑ Center for Progressive Reform, "The Information Quality Act," accessed December 28, 2017
- ↑ U.S. Office of Personnel Management, " Paperwork Reduction Act (PRA) Guide," April 27, 2011
- ↑ United States Department of Justice, "Overview of the Privacy Act of 1974," 2015
- ↑ Justice Information Sharing, "Privacy Act of 1974, 5 U.S.C. § 552a," accessed January 16, 2018
- ↑ https://legislation.ballotpedia.org/admin-state/search?status=Enacted%2FAdopted&category=Occupational%20licensing&category=Public%20disclosure%20and%20reporting&category=Public%20participation&category=Permitting%20procedures&session=2025&session=2024&page=1&view_state=map Ballotpedia Legislation, "Search results for enacted/adopted administrative state bills (2024–2025 sessions)", accessed June 2, 2025]
- ↑ Ballotpedia Administrative State Legislation Tracker, "Bill search: Public participation," accessed on January 28, 2025
- ↑ Ballotpedia Administrative State Legislation Tracker, "Bill search: Public disclosure and reporting," accessed on January 28, 2025
- ↑ Ballotpedia Administrative State Legislation Tracker, "Bill search: Occupational licensing," accessed on January 28, 2025
- ↑ Ballotpedia Administrative State Legislation Tracker, "Bill search: Permitting procedures," accessed on January 28, 2025
- ↑ National Archives, "The Bill of Rights: What Does it Say?" accessed March 24, 2021
- ↑ History.com, "14th Amendment," November 2, 2009
- ↑ Legal Information Institute, "Fourteenth Amendment," accessed March 24, 2021
- ↑ National Archives, "Administrative Procedure Act," accessed March 24, 2021
- ↑ United States Supreme Court, Goldberg v. Kelly March 23, 1970
- ↑ JUSTIA, "Mathews v. Eldridge," accessed September 13, 2018
- ↑ New York University Law Review, "Final Agency Action in the Administrative Procedure Act," November 2017
