Regulations
Regulations are rules issued by administrative agencies to implement, interpret, or administer laws, and can legally bind citizens and other regulated parties.
Congress enacts statutes. Administrative agencies issue regulations under authority delegated to them by statute.
Yet many regulations are themselves legally binding. They can command or prohibit conduct, establish continuing compliance requirements, and expose citizens, businesses, and other regulated parties to legal penalties for violations.
This creates an important constitutional question: How can rules not enacted by legislators through the ordinary lawmaking process nevertheless bind citizens with the force of law?
Laws and Regulations
A federal statute ordinarily must pass both houses of Congress and be presented to the President. Regulations are not enacted through that process. They are issued by unelected administrative agencies pursuant to authority Congress has delegated to them.
Yet certain regulations—often called legislative or substantive rules—have the “force and effect of law” when an agency acts within authority delegated by Congress and follows the legally required procedures.
That produces a seemingly paradoxical but important fact: Regulations can be rules issued by administrative government agencies that have the force and effect of law—and are legally binding on those subject to them—even though the regulations themselves are not statutes enacted by a legislature.
Delegated Power
Administrative agencies do not possess regulatory authority simply because they are agencies. Their authority originates in statutes enacted by Congress or, at the state level, by state legislatures.
A legislature may establish a broad policy and direct an agency to develop the detailed rules necessary to administer it. Sometimes the delegation is narrow and specific. At other times the legislature gives the agency considerable discretion in deciding what particular rules should govern citizens or businesses.
The broader that discretion becomes, the more important the constitutional question: Who is actually making the consequential rules governing citizens—the elected legislature or an unelected administrative agency?
This connects Regulations directly to the Key Ideas Power, Responsibility, Constitution, and Rule of Law.
Rulemaking and Accountability
Administrative rulemaking is not necessarily secret or procedurally unconstrained. Under the federal Administrative Procedure Act, many proposed regulations must be published, the agency must identify the legal authority for its action, and interested persons ordinarily must be given an opportunity to submit comments before a final rule is adopted. The APA defines rulemaking as the agency process for formulating, amending, or repealing rules.
But participation in administrative rulemaking is different from political representation.
Citizens can vote legislators out of office. Career agency personnel do not stand for election. Agencies may be directed by presidential appointees or commissioners chosen through constitutionally prescribed appointment procedures, but much of the actual work of developing, administering, and enforcing regulations is conducted by unelected government bureaucrats.
Regulation therefore raises questions about delegation and political accountability: when a legally binding rule proves unwise, burdensome, or unjust, who is responsible for it?
Combining Governmental Functions
Administrative agencies may also exercise several different kinds of governmental authority within the same institutional structure.
An agency may participate in writing regulations, investigate possible violations of those regulations, bring enforcement actions, and adjudicate certain disputes through administrative proceedings.
In this way, administrative agencies combine rulemaking, enforcement, and adjudicative functions that the constitutional system more generally divides among legislative, executive, and judicial institutions.
That raises another important question: How compatible is this concentration of governmental functions with the principle of separated powers?
Regulation and Compliance
Regulations frequently require citizens and businesses to demonstrate continuing compliance. A business might be required to obtain licenses or permits, maintain records, submit reports, satisfy safety or environmental standards, disclose information, or demonstrate repeatedly that regulatory requirements are being met.
This differs from the traditional criminal-law presumption of innocence. It would be inaccurate to say that a person subject to regulation is therefore legally “presumed guilty.” Rather, regulatory systems frequently impose affirmative obligations that must be satisfied before or while a person engages in regulated activity.
A restaurant, for example, may be required to comply with health standards without government first proving that the restaurant has injured someone.
Failure to satisfy regulatory requirements can produce substantial legal consequences, including fines, loss of licenses or permits, restrictions upon business activity, or other civil sanctions where authorized by law. Federal law expressly recognizes agency sanctions involving licenses, penalties, and other restrictions.
Thus regulation can place substantial burdens upon citizens even in the absence of any allegation that they have committed a traditional crime or directly violated another person’s natural rights.
Regulations and the Rule of Law
Regulation can serve the Rule of Law by translating broad statutes into known, general standards that people can follow.
But regulation can also create tension with the rule of law when delegated authority becomes extremely broad, regulations become too numerous or complicated for ordinary citizens to understand, rules change frequently, or responsibility for important political decisions becomes difficult to identify.
The question James Madison asked about legislation in Federalist No. 62 therefore applies with particular force to administrative rules: “how can that be a rule, which is little known, and less fixed?”
A legally binding rule cannot guide human conduct effectively if the people subject to it cannot reasonably discover what it requires.
Why Regulations Matter
Modern administrative government relies extensively upon regulations to translate statutes into detailed rules governing economic and social activity.
Those regulations can supply technical expertise, establish predictable standards, and help administer laws enacted by legislatures.
But legally binding regulations also exercise governmental power.
The central constitutional question for citizens to consider during elections is how legally binding rules can be made by anyone other than elected, constitutional legislators. Regulation presents an enduring problem for constitutional government: the practical demands of administration must be reconciled with representation, separation of powers, responsibility, and the rule of law.
