Administrative Procedure Act Research Articles

Immigration Law Exceptionalism and the Administrative Procedure Act

Abstract Immigration law is exceptional enough to deserve an administrative law focus of its own. The Administrative Procedure Act (APA) does not demand uniformity in adjudication. Therefore, it may be counterintuitive to argue that any one area of administrative adjudication is exceptional. Removal adjudication is indeed exceptional because it is an extremely dysfunctional system, it operates in a double void of fewer constitutional protections and without the protections of the APA, it relies on a vast network of civil detention, and it is of a different genre than the type of regulation that drove the development of the APA. The exceptionality of removal adjudication demands a review of administrative law doctrine with this exceptionality in mind.

적법절차원칙 구현을 위한 청문제도 운영 방안

Under the Administrative Procedure Act(APA), as a due process for intrusive administrative measures, we require the interested parties to be given prior notice of the disposition and an opportunity to submit their opinions, and to hold hearings in exceptional cases where other statutes stipulate that hearings be held. An administrative hearing is understood as a trial-type fact-finding process. However, more often in Korea, it is operated as mere an oral-opinion-submission procedure rather than a trial-type fact-finding procedure. As a result, administrative agencies do not show much interest in guaranteeing the independence of the hearing examiners in the operation of the administrative hearing. Recently in the increasing number of cases a hearing examiner is selected from among experts such as lawyers or professors. However, Korea’s APA still permits the selection of hearing examiners among general administrative officials or former public officials. Even if the civil servants selected as the presiding officer of the hearing belong to a different department from the adjudicating department, it is difficult to expect independence from the adjudicating department due to frequent rotation within the office. In addition, even in the case of selecting a hearing examiner from among external lawyers, the adjudicating department often intervenes in the selection process, and there is a risk of conflict of interest, making it difficult to expect independence. The most important thing in the administrative hearing is to have an independent hearing examiner listen to statements from both the agency staff and the interested party, collect evidence, check the facts, judge the applicability of the relevant laws, and present an opinion on whether to issue orders. To secure the independence of the hearing examiner, it is necessary to hire a full-time hearing officer selected from among those with certain legal experience. The hearing officer needs to be exclusively responsible for presiding over the hearing and protected from interference from the head of the disposition department or administrative agency. The recent revision of the Administrative Procedure Act not only expanded the subject of the administrative hearing but also introduced the hearing committee system. As a result, the burden of time and cost to pay for the administrative disposition procedure became much greater. However, the reality of administrative hearing in Korea is insufficient to guarantee the Principle of due process of law.

Take It with a Grain (or More) of Salt: Why Industry-Backed Dietary Guidelines Fail Americans and How To Fix Them.

The U.S. Dietary Guidelines lack oversight and accountability. The result: Guidelines that reflect food industry interests instead of modern science. This deleterious guidance goes on to govern federally-subsidized food assistance programs and to influence dietary choices throughout the private sector and private life. Ultimately, the Guidelines significantly contribute to the endemic chronic disease they seek to address. The Guidelines Advisory Committee is notoriously rife with conflicts of interest, and thus most Guidelines scholarship has focused on reforming the Committee. But the 2015 and 2020 Guidelines show that these reforms are insufficient and agency-level change is necessary. In 2015, the Committee made several controversial recommendations related to red meat, ultraprocessed foods, sodium, and sustainability. Due to industry backlash, only the sodium recommendation survived in the final Guidelines published by the Secretaries of the U.S. Departments of Agriculture (USDA) and Health and Human Services (HHS). In 2020, the Secretaries, for the first time, predetermined a list of eighty topics that the Committee may consider. Absent from this list are the most contentious topics from previous years. There is little recourse because the Guidelines are not considered an agency action subject to the Administrative Procedure Act (APA), despite their vast impact on food assistance programs, healthcare practices, tort law, and more. This Note proposes two ways to bring the Guidelines within the APA’s coverage. The first is a litigation strategy, arguing that the D.C. District Court relied on erroneous reasoning when it held that the Guidelines are not an agency action subject to the APA. Second, this Note describes some ways that Congress could amend the Nutrition Act, the statute governing the Guidelines. Applying the APA to the Guidelines would allow for public participation and public challenge, greater transparency, and greater efficiency across agencies. Evidence-based Guidelines would improve overall health, reduce healthcare costs, and ensure that food assistance beneficiaries can access healthy foods. A robust set of Guidelines would improve public confidence in the recommendations and enable further food law reforms, such as amending the Farm Bill, that would make it easier for people to make healthy choices.

The Rediscovered Stages of Agency Adjudication

Modern administrative law understands the Administrative Procedure Act (APA) to establish an informal and a formal procedural mode of two types of agency action: rulemaking and adjudication. This Article argues this understanding, which is sound as applied to rulemaking, is wrong as applied to adjudication. Revisiting the voluminous and long-neglected research that informed the APA, this Article argues the statute codified informal and formal stages—not modes—of adjudication. In this staged process, informal procedures such as investigations, examinations, inspections, and conferences are used in the initial stages of the process and are sufficient to finally dispose of the vast majority of cases. A statutory hearing requirement directs an agency to elevate the few remaining disputes to a subsequent hearing stage, which across agencies is singularly defined by its purpose, timing, and procedural characteristics. Understanding adjudication as a staged process makes the APA’s regime coherent and offers new insights into the statute’s conceptual foundation. It clarifies that an adjudicatory “hearing” under the APA is formal, while amplifying principles that appropriately can be used to cabin hearings and effectuate Congress’s preference for agency over judicial resolution of administrative disputes. It provides a compelling explanation for the APA’s failure to establish minimum procedural requirements for informal adjudication. And once hearings are removed from this category, it emerges that informal adjudication may be better characterized as executive than quasi-judicial. Modern administrative law admits of this possibility, but the APA is blind to it because the statute was founded upon a conception of administrative action as purely quasi-legislative and quasi-judicial and fundamentally not executive. This Article thus identifies a serious, unacknowledged problem: the APA’s conceptual foundation has become antiquated.

Maintaining the Integrity of Democratic Principles with Congressional Remedies: An Assessment of Petitioning for Rulemaking under the Endangered Species Act

An important objective of the 1946 Administrative Procedure Act (APA) was to maintain the integrity of democratic principles in the federal bureaucracy. A provision in the APA stipulating that agencies give interested persons the right to petition for the issuance, amendment, or repeal of a rule democratizes the agenda setting process of regulatory agencies, setting a minimum for participatory opportunities. In the Endangered Species Act (ESA), administered by the Fish and Wildlife Service (FWS), Congress used statutory remedies to underscore the democratic objectives of the APA. In addition to providing a fairly broad petition process in the ESA, Congress set deadlines by which the FWS would act on petitions for rulemaking, and also allowed any person to enforce the deadlines by initiating a civil suit against the agency. Using an original data set of agency responses over a 12-year period to 127 petitions for listing and delisting fauna, this study assesses whether the earliest stage of agenda setting in the FWS furthers the commitment to democratic principles such as accountability, responsiveness, and responsibility. Consideration is also given to various alternatives Congress may choose to employ to maintain the integrity of these principles in administrative agencies.

An Overview of the United States Administrative Procedure Act

For almost seventy-five years, the Administrative Procedure Act (APA) in the United States has set a procedural framework within which most federal administrative agencies must act. The APA lays out procedures that federal actors must follow in fashioning rules and in resolving adjudications, as well as the standards of review that federal courts must use when reviewing the agencies’ resolution of those adjudications and promulgation of rules. As a consequence the APA has been remarkably effective in ensuring that agency decisionmaking is responsive to public concerns and that the public has an outlet for voicing those concerns. Nonetheless, some of the exceptions carved out by Congress in the APA have created problematic gaps, failing to protect the regulated public adequately, particularly from agency policy statements and interpretations of statutes and regulations, which private firms and individuals cannot challenge directly but may affect their livelihoods.

Notice-and-Comment Rulemaking in Comparative Perspective: Some Conceptual and Practical Implications

AbstractPublic participation in administrative rulemaking is typically embodied in notice-and-comment procedures essentially mandating the publication of a proposed rule and an opportunity for the public to submit comments thereon prior to its adoption. This article presents a comparative analysis of the notice-and-comment regimes under the Philippine Administrative Code (PAC) and the United States’ Administrative Procedure Act (APA). In stark contrast to the Philippine legal framework which renders compliance with the notice-and-comment procedure practically discretionary on the part of the agency, the APA prescribes the conduct of notice-and-comment as a general rule, and courts rigorously police agencies’ compliance with the procedure. This article argues that the mandatory (or discretionary) nature of the notice-and-comment mechanism impinges on the efficacy of procedural challenges to administrative rules, the standard of judicial review applied to agency statutory interpretation, and the statutory creation of public norms. The article hopes to inspire a re-evaluation of the Philippine framework while providing valuable lessons to other jurisdictions with similar legal architectures.

Constraining the Statutory President

When agencies make decisions that are binding on the public, they must provide public notice, accept and consider public comments, and provide explanations for their final decisions. Their actions are then subject to judicial review to ensure that they acted within the scope of their authority and the decision was not arbitrary or capricious. The President, however, is not subject to such constraints, even when exercising purely statutory authority, i.e., acting as the “Statutory President.” That autonomy is due to the Supreme Court’s holding in Franklin v. Massachusetts that the President is not an “agency” under the Administrative Procedure Act (APA). Thanks to Franklin, the President exercises delegated authority to make policy decisions that have enormous implications for the public without the public involvement, transparency, deliberation, and political and judicial accountability that we demand when agencies make such decisions. This article is the first to take Franklin v. Massachusetts head on. It demonstrates that the Court’s 1992 holding conflicts with the plain language and history of the APA; it explains the flaws in the Court’s constitutional analysis; and it presents the normative case for treating the Statutory President like any other agency. Having shown that Franklin was wrong, this article sketches a new model for treating the Statutory President like an “agency” under the APA. It concludes by explaining how both the process and outcome of Trump v. Hawaii, in which the Supreme Court upheld the President’s order barring immigration from certain Muslim-majority nations, would have been different had the President been subject to the APA.

Coproduction of regulations under the administrative procedure act: How close is the US to a classical Liberal regulatory system?

Aligica et al. 2019) posit that a form of public administration founded in the classical liberal tradition should recognize value heterogeneity, which would create a need for coproduction of rules and polycentricity in the production of rules. Utilizing a dataset of 130 economically significant executive branch regulations proposed between 2008 and 2013, this paper assesses whether US regulators act in a manner consistent with the predictions of their theory. US federal agencies use several methods that could facilitate coproduction of rules by stakeholders. Statistical analysis finds that agencies are more likely to employ some stakeholder participation strategies for the types of regulations that may involve more heterogeneous values. However, there is scant evidence that the stakeholder participation strategies that agencies employ more extensively when values are more heterogeneous are associated with consideration of a wider variety of alternatives. There is no evidence that agencies consider a wider scope of alternatives for regulations that may involve more heterogeneous values. Therefore, value heterogeneity and stakeholder participation have not by themselves been sufficient to move the US toward a polycentric regulatory system.

Conflict, Institutions, and Public Law: Reflections on the United States as a Developing Country

Between roughly the end of the 19th century and the the end of Word War II, the United States experiences a remarkable change. Over the course of several decades, it evolves from being a country with a weak national government and considerable domestic instability to being a geopolitical power where judicial and administrative institutions were routinely used to resolve internal conflicts. We explore in this paper how this transition occurrs and how it illuminates both public law and the study of law and development. We start from the premise that the existence of relatively stable institutions able to channel a great deal of political conflict –– even in the United States –– is an outcome that needs to be explained, rather than a condition that can be assumed to follow from culture, geography, or wealth. Indeed, the extent of corruption and labor conflict in the United States belies the idea the country was always able to resolve most or all conflict effectively through public institutions. The story we tell to resolve this question has its grounding in another puzzle: Why did the changes in the American political economy of the early 20th century coincide with a period where public corruption declined, labor-related violent conflict subsided, governmental capacity to regulate and collect taxes grew, and major public law disputes about the structure and control of agencies received serious attention in court and were –– by the end of World War II –– resolved at least in preliminary form? We argue that these developments occurred together for a reason, and understanding them together sheds light not only on the American political economy but on law and development writ large. Our most general claim is that the law and development story is contingent and needs to be better explained in terms that address how institutions can be used to channel conflict and mitigate violence. The story of American institutions as often narrated also devotes insufficient attention to the early 20th century, and in particular, to the mix of corruption mitigation, capacity growth in the federal state, and compromise and accommodation that assuaged major conflict — especially in labor, as occurred during certain episodes of the West Virginia Coal Wars — after technological and geopolitical changes put pressure on the American political economy. Such compromise distinguished the United States from countries like Argentina, where contentious politics and factional strife interfered with the resolution of major disputes through formal mechanisms. Our most specific claim concerns the pivotal years between passage of the National Labor Relations Act (NLRA) and the Administrative Procedure Act (APA). During these years, new forms of public law, including fierce statutory labor compromise and adaptive nationwide agencies like the National Labor Relations Board, constitutional compromises on delegation and executive power cutting against corporatism, and administrative procedure helped institutionalize compromise and facilitated channeling of conflict into formal institutions. This transformation is the crucial backdrop not only to the emergence of the United States as the preemiment geopolitical power of the latter half of the 20th century, but to the conflicts about public power and social change that continue to bedevil the United States today.

Essay: The World After Seminole Rock and Auer

For more than 70 years, the Supreme Court of the United States has consistently held that the federal courts must defer to an agency’s interpretation of a vague or ambiguous agency rule. The Court adopted that principle in Bowles v. Seminole Rock & Sand Co., and it has long treated the ruling as if it were a statute rather than an opinion by applying it in a wide range of contexts with little regard to whether their facts resemble the ones that gave rise to the Court’s original decision. Seminole Rock gave birth to what has become a well-settled administrative law doctrine, one that the Supreme Court and lower courts have cited on more than a thousand occasions. The Supreme Court should overrule it. Wrong when decided in 1945, Seminole Rock should have passed into history when Congress enacted the Administrative Procedure Act (APA), which directs courts to review and set aside agency actions that rest on an erroneous view of the law. The ruling also stands in obvious tension with two far more deeply settled principles of Anglo-American law: the proposition set forth in Marbury v. Madison that it is “emphatically the province and duty of the judicial department to say what the law is” and the principle — which traces its lineage to maxims that stretch back to Judge Edward Coke, William Blackstone, Demosthenes, and Cicero — that judges will be independent from the parties to a dispute. The Seminole Rock decision, however, effectively empowers one party to a lawsuit — a federal agency — to decide the legal issue. To date the Supreme Court has never recognized the existence of this conflict, let alone attempted to resolve it. The Supreme Court has an opportunity this Term to correct its mistake and “retire” Seminole Rock in Kisor v. Wilkie. The world as we know it would not end if the Court did so. While federal courts would no longer be constrained by an agency’s unpersuasive, unreasonable, or unlawful construction of a regulation, agencies would still operate much the same, issuing regulations that touch on nearly every aspect of Americans’ daily lives, from highways to healthcare. It is time for courts — not agency officials — to decide questions of law.

The New World of Agency Adjudication

In 1946, the Administrative Procedure Act (APA) set forth the criteria for “formal” adjudication, requiring an administrative law judge to make the initial determination and the agency head to have the final word. That is the lost world. Today, the vast majority of agency adjudications Congress has created are not paradigmatic “formal” adjudications as set forth in the APA. It turns out that there is great diversity in the procedures by which federal agencies adjudicate. This new world involves a variety of less-independent administrative judges, hearing officers, and other agency personnel adjudicating disputes. But, like in the lost world, the agency head retains final decision-making authority. In 2011, Congress created yet another novel agency tribunal — the Patent Trial and Appeal Board (PTAB) — to adjudicate patent validity disputes between private parties. Questions abound concerning the PTAB’s proper place in the modern administrative state, as its features depart from the textbook accounts of APA-governed “formal” adjudication. Many of these questions are working their way through the Federal Circuit and to the Supreme Court. Indeed, the Supreme Court recently held in Oil States Energy Services that PTAB adjudication does not unconstitutionally strip parties of their property rights in issued patents—while expressly leaving open many questions concerning the limits of administrative adjudication. This Article situates PTAB adjudication within administrative law’s larger landscape of agency adjudication. By surveying this new world of agency adjudication, we find that PTAB adjudication is not extraordinary. But we also identify one core feature of modern agency adjudication that is absent at the PTAB: the Director of the Patent and Trademark Office lacks final decision-making authority. To be sure, the Director has some power to influence outcomes: in the past, she has ordered rehearing of cases and stacked the board with administrative patent judges who share her substantive vision. But these second-best means of agency-head control raise problems of their own, including constitutional questions and inefficiencies in agency performance. This Article concludes by exploring alternative mechanisms that would remedy the lack of agency-head review at the PTAB.

Progressive Textualism in Administrative Law

Nicholas Bagley’s article The Procedure Fetish is destined to be a classic. In it, Bagley systematically dismantles administrative law’s obsession with procedure. He decimates the arguments that procedure is necessary to legit-imize the administrative state and avoid agency capture. He nullifies the con-tention that administrative law is neutral by showing how proceduralism inhibits regulation and “favors a libertarian agenda over a progressive one.” Bagley urges progressives to abandon “gauzy claims about legitimacy and accountability” and approach procedure with skepticism. The Procedure Fetish addresses the normative question of what adminis-trative law ought to require. Bagley writes about how progressives should solve the “optimization problem: [w]hich set of procedures will best balance the competing goals of efficiency, the protection of legal rights, and public accountability.” Bagley does not, however, provide an answer to the ques-tion of where progressives should find currently binding administrative law. The answer is simple: the Administrative Procedure Act (APA). Progressive textualism provides the missing piece for Bagley’s analysis.

Administrative Records and the Courts

The Administrative Procedure Act (APA) enables individuals dissatisfied with agency action to challenge such action in federal court under standards that, depending on the type of action, range from “arbitrary and capricious” to “unreasonabl[e]”. The evidence that courts consider when rendering APA judgments is “the whole record” from the agency. Under the APA’s text, structure, stare decisis, history, and as a matter of practicality, “the whole record” means all materials considered or relied upon by the agency, as reflected in the record presented by the agency to the court. If an APA petitioner can make a strong showing that the agency’s record is missing documents that properly belong in the record, then she overcomes a strong presumption of agency regularity and may include those documents in the administrative record. “[T]he whole record” engenders significant confusion and inter-decisional inconsistency among litigants and courts. The APA does not define the term. Although scholars have for years described the legal landscape of record “completion” and “supplementation”, and in the absence of Supreme Court precedent, this article is the first to critically analyze the nuances of the APA record rule and why some litigants and courts are misapplying the law.

Fine tuning of the General administrative procedure act

General Administrative Procedure Act was enacted in 2016 and started to be applied as of June 1, 2017. The new law brought important novelties and significantly altered the concept of its predecessor, which has tradition longer than eight decades. As it suits the law of such prominence and the scope and importance of the novelties, the new General Administrative Procedure Act provoked contrasting reactions in the academic community – from critique to commendations. The author of the paper (at the same time the one of the authors of the draft law) proposes amendments to the law that could ameliorate the administrative procedure. The author of the paper finds that there is a space for improvement of the provisions concerning the guarantee act, parties, delivery, objection, appeal and enforcement procedure.

Fomenting Authoritarianism Through Rules About Rulemaking

In recent years, the President of the Unites States has assumed increasing power. Among other things, the President now makes decisions that federal administrative agencies previously would have made. This trend is not new, but it has reached a new height in the current administration. Some of the reasons for this development are obvious: the Congress’s lawmaking ability has atrophied, and technology and the media encourage the President to take credit for federal policy decisions. Just as Congress’s inaction contributes to this trend, so too does agency inaction. When agencies cannot make or change policy in a timely and efficient manner, the President is more inclined to do it himself. Agency rulemaking has become extremely resource-intensive making them increasingly unable to respond to changing circumstances in a timely fashion. That is due in part to requirements imposed by the Congress, the President, and the courts. Though well-intentioned, the judicial rules about rulemaking are particularly problematic. Many of those rules conflict with the Administrative Procedure Act (APA), the primary statute governing federal agency procedure and judicial review. That conflict is of great concern because the passage of the APA in 1946 marked a significant moment in deliberative democracy: after years of debate among the Congress, the Executive Branch, and the public, Congress passed the APA unanimously, and the President signed it into law. The APA balanced multiple values, concerns, and variables. When the courts to disturb that balance, they raise exceptional separation-of-powers and political-accountability concerns. The judicial rules governing agency rulemaking also are problematic because they have unanticipated consequences. Of the three branches of the U.S. government, the courts are the least capable of considering various positions and proposals and predicting which approach to administrative policymaking will be most effective. Thus, their rules seeking to enhance transparency, accountability, and public participation in administrative processes yield other results as well. Among other things, the courts’ rules about rulemaking have fomented the growth of authoritarianism by making agency rulemaking more difficult. Changing times require changing policy. Congress’s policymaking ability, however, is severely compromised, and federal agencies are overburdened by procedural requirements. Thus, the President has stepped into the policymaking breach. The courts should recognize their role in the changing power structure of the U.S. government and adhere to the careful balance achieved in the APA. They should require agencies to adhere to the APA’s requirements without overburdening them.

Regulating Through the Back Door at the Commodity Futures Trading Commission

This paper looks at how the Commodity Futures Trading Commission (CFTC) has implemented its mandate under the Dodd-Frank Act. Although the CFTC has imposed many regulations through notice-and-comment rulemaking under the Administrative Procedure Act (APA), it has also used other methods — such as staff letters, guidance, and enforcement actions — to impose binding obligations on regulated persons. These other methods arguably violate the APA and make it more difficult for the public, Congress, and the courts to hold the CFTC accountable for its actions. Even the CFTC’s own commissioners are excluded from important policy decisions. As a consequence, the CFTC compromises its ability to regulate effectively.

The Exceptionalism Norm in Administrative Adjudication

The standard narrative envisions administrative law as a quasi-constitutional field with the Administrative Procedure Act (APA) as its superstatute backbone. In rulemaking and judicial review, this narrative is compelling and has facilitated judicial and scholarly rejection of agency claims to “exceptionalism,” i.e., exception from uniform, cross-cutting administrative law principles. This Article argues that there is a significant omission from the standard narrative: adjudication. Here, Congress, the courts, agencies, and scholars have embraced the use of unique institutional structures and procedural rules tailored to suit the needs of individual agencies and regulatory programs. As a consequence, most adjudication is conducted outside of the APA, which has little role in defining “adjudication” or specifying its minimum procedures. In adjudication, this Article argues, exceptionalism is the norm. On the level of theory, this undermines administrative law’s standard narrative. More practically, although exceptionalism may benefit individual programs, it threatens system-wide harms — to transparency, fairness, and quality procedural design — that escape program-specific evaluation.

Independence in Administrative Adjudications: When and Why Agency Judges Are Subject to Deference and Influence

Are administrative adjudicators subject to external influence and pressures? We present the results from a nationwide survey of agency adjudicators, focusing on immigration judges (IJs) and administrative law judges (ALJs) in the Social Security Administration (SSA). ALJs follow decisional procedures spelled out in the Administrative Procedure Act (APA) and are given substantial legal protections from agency pressures. IJs do not follow APA procedures, nor do they receive its protections. We find IJs give significantly greater deference to the positions of the public, their agency, Congress, and the president, and report more favorable attitudes toward interest groups in adjudications.

The New World of Agency Adjudication

In 1946, the Administrative Procedure Act (APA) set forth the criteria for “formal” adjudication, requiring an administrative law judge to make the initial determination and the agency head to have the final word. That is the lost world. Today, the vast majority of agency adjudications Congress has created are not paradigmatic “formal” adjudications as set forth in the APA. It turns out that there is great diversity in the procedures by which federal agencies adjudicate. This new world involves a variety of less-independent administrative judges, hearing officers, and other agency personnel adjudicating disputes. But, like in the lost world, the agency head retains final decision-making authority. In 2011, Congress created yet another novel agency tribunal — the Patent Trial and Appeal Board (PTAB) — to adjudicate patent validity disputes between private parties. Questions abound concerning the PTAB’s proper place in the modern administrative state, as its features depart from the textbook accounts of APA-governed “formal” adjudication. Many of these questions are working their way through the Federal Circuit and to the Supreme Court. Indeed, the Supreme Court recently held in Oil States Energy Services that PTAB adjudication does not unconstitutionally strip parties of their property rights in issued patents—while expressly leaving open many questions concerning the limits of administrative adjudication. This Article situates PTAB adjudication within administrative law’s larger landscape of agency adjudication. By surveying this new world of agency adjudication, we find that PTAB adjudication is not extraordinary. But we also identify one core feature of modern agency adjudication that is absent at the PTAB: the Director of the Patent and Trademark Office lacks final decision-making authority. To be sure, the Director has some power to influence outcomes: in the past, she has ordered rehearing of cases and stacked the board with administrative patent judges who share her substantive vision. But these second-best means of agency-head control raise problems of their own, including constitutional questions and inefficiencies in agency performance. This Article concludes by exploring alternative mechanisms that would remedy the lack of agency-head review at the PTAB.