Rulemaking Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Rulemaking is the process by which executive branch agencies write regulations that have the force of law. Rules include everything from requiring public corporations to notify shareholders that proxy voting materials are available on the Internet in a manner prescribed by the Securities and Exchange Commission, to specification by the Environmental Protection Agency of concentrations of pollutants in drinking water that require corrective action by local agencies. Agency authority to make rules comes from acts of Congress, and the process of rulemaking is governed by an extensive body of statutes (the watershed is the Administrative Procedure Act of 1946) and court cases. Though they are sometimes described as merely “filling up the gaps” in acts of Congress, agency rules can mark important substantive changes in policy and implicitly pick among competing social interests or values. Rulemaking significantly expands the reach of the federal government; no area of federal policy making is untouched by rulemaking.

Legitimacy Questions

Because agency personnel are not elected, rulemaking as substantive policy choice by agencies raises important issues of democratic legitimacy. Because rulemaking is a quasi-legislative function vested in executive agencies, it raises potential challenges to separation of powers. Thus, while rulemaking can be partly justified on the basis of agency expertise on substantive policy matters, the democratic and constitutional issues it presents raise agency accountability in rulemaking to paramount importance. All three constitutional branches of government possess formidable tools to hold agencies accountable, if they choose to use them.

Courts have been committed to close review of agency rules from the earliest days of federal regulation. Agency rules can be challenged in court on numerous grounds—e.g., that the agency’s decisions are arbitrary and capricious; that its interpretation of the statute granting rulemaking authority is either inconsistent with the clear meaning of the statute, if such is apparent, or, if the clear meaning is not apparent, not reasonable; that the statute delegating the authority is an open-ended delegation of Congress’s power to make law; that the agency did not follow appropriate procedures in making rules; or that the rule is not justified by substantial evidence. On top of statutes governing rulemaking procedures, federal courts have established a large body of precedents and tests to resolve these issues in extensive review of specific agency rules every year. Courts also implicitly influence rules through control of standing, the determination of who has the right to sue federal agencies due to adverse effects of rules.

Presidential Influence

The president also has several formal channels to influence agency rulemaking. First, though statutes empowering agencies to make rules usually delegate that power to department or agency personnel, not the president, it has been apparent since 1835 (when President Andrew Jackson fired his Treasury secretary for declining to use his statutory authority as the president desired) that presidents can fire executive branch appointees based on disagreements with their use of discretionary authority granted by Congress. Second, a less disruptive channel of presidential control is regulatory review. This authority was asserted by President Ronald Reagan in Executive Order 12291 (after assertions on a more limited scale by President Richard Nixon), and requires agencies to clear “major rules” with the Office of Management and Budget (OMB) before they become effective—effectively a screening device for the president. Subsequent presidents have reaffirmed or expanded OMB review. These potent formal tools of presidential management apply to rulemaking in cabinet departments and their agencies, not to independent regulatory commissions. Presidents cannot fire appointees in independent commissions due to mere policy disagreements, and presidents have not attempted to assert regulatory review authority over their regulations.

Congressional Rulemaking

Congress also has several tools, formal and informal, to influence agency rulemaking. First, the Congressional Review Act (CRA) imposes a sixty-day waiting period before rules become effective; during this period either house of Congress can pass a Joint Resolution of Disapproval (JRD) of the rule, which if passed by the other house and signed by the president nullifies the rule and prevents the agency from issuing any substantially similar rule in the future. The important points in the CRA are the waiting period and the fact that the JRD cannot be filibustered in the Senate. The CRA was most prominently invoked to nullify a major rule on ergonomic safety in the workplace by the Department of Labor. The ergonomics rule, the result of more than ten years of work by the department, was passed in the waning days of the Clinton administration; the waiting period overlapped with President George W. Bush’s term, thus giving the Republican Congress a more sympathetic president when it passed the JRD. (In earlier decades Congress could choose to require prior approval by Congress before rules took effect—a practice called legislative veto—but the Supreme Court ruled this unconstitutional in 1983. The CRA was passed to reclaim some of this authority for Congress while meeting the Supreme Court’s objection.)

Additionally, through repeated interaction with agencies, control over budgets and statutory authority, and giving favored interest groups privileged access to agency proceedings, Congress has several channels to control or at least influence the content of agency rules, when and if it is unified enough to send clear messages to agencies. However, because Congress requires majorities or supermajorities in two chambers to take formal action, internal disagreements within Congress can de facto increase the discretion agencies have to forge their own course of action, which Mc Cubbins, Noll, and Weingast (1987) have dubbed agency drift.

Because rulemaking can profoundly affect public policy, at times each constitutional branch does take enough interest to wield its tools of influence. Scholars have found measurable influence over the content of agency decisions by Congress, the president, and courts. The question of who “controls” rulemaking in the bureaucracy is too simplistic to be meaningful, but it is clear that several actors have the means and, given rulemaking’s importance, the incentive to influence the content of rules.

Bibliography:

Canes-Wrone, Brandice. “Bureaucratic Decisions and the Composition of the Lower Courts.” American Journal of Political Science.47 (2003): 205–214.
Epstein, David, and Sharyn O’Halloran. Delegating Powers: A Transaction Cost Politics Approach to Policymaking under Separate Powers. New York: Cambridge University Press, 1999.
Kerwin, Cornelius M., and Scott Furlong. Rulemaking: How Government Agencies Write Law and Make Policy. 4th ed.Washington, D.C.: CQ Press, 2010.
McCubbins, Mathew, Roger Noll, and Barry Weingast. “Administrative Procedures as Instruments of Political Control.” Journal of Law, Economics, and Organization 3 (1987): 243–277.
Moe,Terry. “Control and Feedback in Economic Regulation: The Case of the NLRB.” American Political Science Review 79 (1985): 1094–1116.
Weingast, Barry, and Mark Moran. “Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission.” Journal of Political Economy 91 (1983): 765–800.

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