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The Problem of Nonlegislative Rules

One of the big problems involving administrative agencies is that they are often insufficiently checked.  With the relaxation of separation of powers during the New Deal, modern administrative law limits agencies through two principal mechanisms: required procedures and judicial review.  Unfortunately, administrative law allows certain loopholes to these mechanisms that agencies can exploit.

One of the biggest problems these days occurs when agencies regulate through the use “guidance documents.”  Mike Greve recently had a post discussing the Department of Education’s use of one such guidance.  When agencies issue legislative regulations – rules that bind the public – they are normally required to do so after a notice and comment procedure.  Moreover, such rules are often subject to judicial review when they are issued.  Thus, there is a procedural and judicial review check on such legislative rules.

By contrast, guidance documents – which often read like legislative rules in that they appear to tell regulated parties how to act – are not subject to the notice and comment procedure.  While guidance documents do not formally bind private parties, they often operate in the real world to exert a practical influence on the public.  Moreover, while the matter is subject to dispute, there is often not judicial review of such rules.  As a result, agencies love to regulate with such guidance documents since they can avoid scrutiny.

While the courts could possibly address these problems, the best way would be through legislation.  Administrative agencies have enormous influence over the country and the Congress needs to pay attention to them.  Republicans, who have recently been greatly concerned about the abuses of administrative agencies, should attempt to address this problem through legislation.

The fix would be a relatively small one – even close to a technical one.  And therefore one might believe that it could occur with less of the partisanship that normally confronts legislative changes.

But don’t bet on it.  There is an enormous special interest that would seek to block it – the government of the U.S., including the President and the agencies.  But that does not mean that there is no chance.  Here is one way it could happen.  The Republicans (or Democrats) get behind the issue when they do not control the executive branch.  Then, when they control it, they pass the law, but delay the enforcement of the law for four years (which they might justify on the grounds that the executive requires some time for adjustment).

But what is the fix?  I turn to that in my next post.

Reader Discussion

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on October 22, 2014 at 07:48:49 am

How, exactly, would the problem of guidance documents be fixed? As far as I can tell, these documents -- not purporting to have the effect of law -- are simply free speech. (Moreover, under the Unitary Executive theory, they are arguably the President's speech.) They say, in effect, "Here are safe harbors: If you do this, we won't exercise our discretionary enforcement powers to come after you. Conversely, be aware that we're focusing our enforcement powers on people who go beyond these harbors."

I find it astonishing that you'd suggest that courts could abrogate the free speech rights of agencies. Congress's power is less clear. Obviously Congress can eliminate agencies. Does it therefore follow that they can exert all formal controls short of elimination? Or would we be talking about informal controls? "If you issue a document that we regard as a guidance document, we'll eliminate half your budget"?

(These procedural concerns do not even address the main question: Why should we prefer that agencies spring enforcement actions on people without first giving them detailed notice of the conduct that might attract the agency's attention? We just like surprises or something?)

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nobody.really
on October 22, 2014 at 11:41:46 am

What netherworld do you reside in?
Again, you present a "seemingly" reasonable explanation for these agency actions. However, the purpose of these "guidances / assurances" of *safe-harbor* is not to forewarn but rather to intimidate, to directly influence behavior / practice beyond that which is statutorily (even administratively) mandated. In short, it is the agency equivalent of "pushing the envelope" and while we may prefer this in fighter pilots, it is surely not something that we should accept from bureaucrats!

Also, you consistently fail to account for the *baser* motivations of many government actors in these situations. Clearly, they are not saints and may be said to be subject to the same motivations as any corporate employee.
"Look, boss, how I expanded the departments influence"! Hey, maybe I should get a promotion? Clever little buggers, these types who are found in ALL organizations not just government. Self serving, self aggrandizing little politicians seeking advantage and using readily available means at their disposal.
No different from private business "politics" - as I used to tell business associates: "Self serving, political B>S is not to be found in the Corporate Charter - for that you must look to the individual employee or department"

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gabe
on October 22, 2014 at 11:59:55 am

Nobody:

Upon reflection, I may have missed your *satire* on Presidential free speech, etc. If so, apologies!!!!

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gabe
on October 22, 2014 at 12:41:13 pm

No, no satire this time; I speak in earnest. But it can often be hard to tell. :-)

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nobody.really
on October 22, 2014 at 15:09:16 pm

Quite right in terms of "hard to tell" - but I do rather enjoy them.

seeya
gabe

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gabe

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