Federal Regulations

Executive and independent regulatory agencies promulgate regulations that govern all facets of our lives. Known as administrative law, this form of rulemaking is critical to the operation of our modern society since Congress cannot possibly write laws specific enough to be meaningfully applied. For instance, the Clean Air Act and the Clean Water Act, which took Congress years to draft and pass, do not dictate the standards and technologies applicable to every single industry. Instead, the scientific and policy experts at the Environmental Protection Agency promulgated these environmental regulations.

The Administrative Procedures Act

Leaving the development of administrative regulations to the executive branch does pose some problems though. First, even though the public may comment on proposed regulations, executive agencies typically create rules—which have the force of law—out of the light of public scrutiny.

Secondly, since the agencies are part of the Executive Branch, the President may choose to selectively enforce certain regulations. For example, the President may focus on prosecuting religious discrimination cases instead of race discrimination cases, or place less emphasis on the enforcement of environmental or antitrust laws.

Finally, administrative law may potentially violate the separation of powers when an executive agency acts in a quasi-legislative (they can define policy) or quasi-judicial (they can resolve conflicts and assess penalties through administrative hearings) manner.

To deal with these problems, Congress passed the Administrative Procedure Act (APA) in 1947. This law basically ensures that the public is informed about proposed rules, creates a process for public comment, sets up standards for rulemaking and hearings, and defines when courts may review and invalidate administrative decisions.

Rulemaking and Review

Federal agencies must take a number of steps to make a rule. Under the APA, agencies must publish proposed rules in the Federal Register, allowing at least 30 days for public comment before they go into effect. Notices of public hearings must be published in the Federal Register and are generally posted on agencies websites. Once a rule has become final, it's printed in the Federal Register and the Code of Federal Regulations.

In addition, the president, through the Office of Management and Budget, has review powers over all executive agency decisions. Agencies must conduct a cost-benefit analysis of the regulation, and "major rules," which are estimated to cost more than $100 million, must undergo a more stringent cost analysis.

Congress has a say, too. Under the Congressional Review Act, agencies must submit new rules to the Senate and House, which have 60 days to review and reject any new rules. This power is limited, though, because the president must sign the Resolution of Disapproval, just as with any other bill. Congress has only invalidated one federal regulation since the law became law in 1996.

Finally, the courts provide the ultimate review of agency discretion. Under the APA, courts may set aside regulations that are "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law."

In the most important case on judicial review of administrative law, Chevron v. National Resource Defense Council, the Supreme Court created a two-step rule by which (1) courts determine if the enabling legislation permits or forbids an agency's interpretation and (2) if the statute is unclear, courts determine whether the regulation is reasonable. Under Chevron, the courts defer to all reasonable agency regulations.