The debate on formality and informality of administrative law has ranged for many years in the United States. Administrative law is a branch of public law that governs the activities of government administrative agencies. The administrative roles of government agencies are rulemaking, adjudication and implementation of specific regulatory agenda. Administrators’ operations in management of law matters are governed by certain managerial processes. They may perform their administrative duties through stipulated formal hearings or by informal processes. The mode of application of the law may be stipulated through legal statutes that determine the process to be followed, or the public administrators may decide, within their discretion, the procedure to follow. This paper will focus on the continuum of legal formality and the advantages and disadvantages of its components.
Informal agency action refers to actions of administrative agencies that do not involve rulemaking or adjudication. Generally, informal agency actions are informal in nature. For instance, a claim for payment of medical treatment. Aman (1994) describes informal agency actions as the lifeblood of administrative justice in the US because they form everyday administrative agenda of the government. There are no formal hearings, no strict adherence to rules of evidence and decisions are made by the agency and no juries are involved. In formal agency action, trials are conducted according to federal rules of civil procedure (Summers, 1996). These state or federal rules do not apply to informal agency proceedings since they are governed by Administrative Procedure Act (APA). APA stipulates how the evidence is presented and how an administrative law judge presides over the hearings.
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The adjudication process is governed by the APA rules. In Goldberg v. Kelly (1970) the supreme court ruled that due process of evidentiary hearing must be followed before such benefits are deprived of a recipient (Carter & Harrington, 2000). The respondent is entitled to oral hearings before a neutral arbiter or judge. This process can therefore be formal or informal. The arbiter examines the evidence and arguments presented by litigants and makes a ruling based on the rights and obligations of the opponents. The process starts with the claimant serving the respondent with a notice of adjudication. The respondent may provide a rejoinder to the claimant with a notice to proceed with the process. Both parties agree on a common adjudicator, and in case they disagree, each party can ask the court to provide a universal adjudicator. Thereafter, the adjudication is conducted in strict adherence to APA rules, parties submit documents, present arguments and the judge makes a determination.
Rulemaking process is an open public process governed by APA. Agencies derive their authority to issue regulations from statutes enacted by congress and sometimes the president delegates presidential authority to agencies (Strauss, 1991). Agencies are required to publish statements of the rulemaking authority in the Federal Register. The administrative agency, after receiving the authority to make rules from congress is required to operate within its legal boundaries in deciding priority issues. The process must involve the public as the agency is required to collect public views in a structured manner. The agency then develops the proposed rule after conducting a wide range of consultations with the relevant stakeholders. The proposed rule is first published in the Federal Register for public to give comments after examining how it is structured to solve a problem. After incorporation of any recommendations, the agency publishes the final rule and it formally becomes law. The discretion of administrative agencies lies in the statute that created the agency and any reviews must make reference to the statute. On the other hand, in reviewing agency actions, courts must apply judicial review standards.
The boundary between formality and informality of administrative law is indistinguishable. Adjudication and rulemaking processes can be deemed as either formal or informal depending on the nature problem being solved. Application of the law by administrative agencies may or may not be subject to judicial review. For instance, in a case where litigants agree to forego certain actions that are beyond the actual agency’s regulatory power to avoid protracted litigations, such an informal agreement is not subject to judicial review (Aman, 1994). Application of administrative law is subject to declaratory orders since rulings and interpretations involve ascertaining whether the particular regulations apply to facts of the case and hence the result (Newman, 2018). In cases where petitioners seek clarifications to a certain rule which was determined by an administrative agency, the interpretation may be done by the courts. The court interpretation can either affirm or dismiss the premises used to determine a particular case hence rendering agency semi-autonomous.
Maintaining neutrality in both formal and informal law remains a serious bottleneck. Getting a system that grants agencies flexibility and autonomy required in order to act freely and efficiently without the red tapes in arbitrariness is a complex balance. This formality-informality continuum has not been balanced because courts continually dictate to agencies what to do and what not to do. They decide for agencies when to go formal or informal in adjudication, mediation, and rulemaking thus affecting the administration of justice by administrative agencies. The formality and informality of administrative laws remain blurred.
References
Carter, L. H., & Harrington, C. B. (2000). Administrative law and politics: Cases and comments . Pearson College Division.
Strauss, P. L. (1991). Rulemaking Continuum, The. Duke LJ , 41 , 1463.
Summers, R. S. (1996). How law is formal and why it matters. Cornell L. Rev. , 82 , 1165.
Aman Jr, A. C. (1994). Informal Agency Actions and US Administrative Law-Informal Procedure in a Global Era. Am. J. Comp. L. Supp. , 42 , 665.
Newman, A. (2018). Informality Conceptualized: The Continuum of Formality. Academy of Management . doi:https://doi.org/10.5465/AMBPP.2018.14419abstract
