This is concerning US federal law, though feel free to extend it to other juristictions.
I just had the structure of how laws are enforced explained to me by someone who should know. But it is new to me and I am curious whether I have it correct.
What I was told:
Federal Law (congress) | Federal Regulations (executive) | law enforcement (prosecutors and police) | citizens (public in general).
What I am told is a law written by congress by itself is rarely if ever enforceable on the public. There has to be Regulations written interpreting the law and those guide the enforcement people to get out the handcuffs.
The example given is oil pollution in the water. (Simplified for conciseness).
Congress says it is bad: Do not allow oil to end up in the water.
Regulators: “oil” means such and such a substance and in greater than a certain quantity. "water means open public water in the US. etc. That means for example that congress says it is against the law to put oil in water. The regulation says it has to be greater than 100 gallons (or 1 teaspoon. whatever).
So because of the interpretation of the law by the regulation:
what congress said: don’t put oil in water
what can’t be done: don’t let large amounts of petroleum leak into the public waterways.
There is a big difference in these two things. Congress says: don’t allow any oil to come into contact with any water. Regulations allow pollution up to some limit.
[To be clear, it is my understanding that the regulations do NOT allow any visible amount of oil in a public waterway. In that sense the oil pollution regulation accurately describes the law. But it is the example I was given]
My question is: can Government regulations be written to change the plain language of the law? Even in cases where it is clearly in the interest of common sense and good government to do so, how can it be legal? I know the actual effect of the law is determined by the regulations, but I always thought the regulations (I am not a lawyer) was the place that spelled out the administrative details. Such as the official definition of oil, who gets the enforce the law (I know the law usually specifies what agency is charged with enforcement, but someone has to define where the phone calls go), what form to use in filling out the paperwork, etc.
And also, what if the regulation says 100 gallons minimum (and the law doesn’t specify) and some prosecutor decides the law doesn’t say so one teaspoon is enough for an indictment?
I’m not sure what you mean by “plain language of the law,” but in general the reason that the federal rulemaking process is legal is because the very statutes which are regulated delegate rulemaking authority to a particular executive-branch agency. In your example, Congress will pass a statute saying “you shouldn’t dump oil in water, oh and BTW the Enviromental Protection Administration may write regulations about precisely what that entails.”
Because of the delegation, the regulations have the force of law, but in the case of a conflict, the courts are always going to side with what the statute says, since that is the will of the Congress.
Prosecutors don’t really file criminal charges for regulatory violations. The vast majority of federal regulations deal with what people and businesses are supposed to do and requirements they must meet. If they fail to meet their obligations, the appropriate executive branch agency in charge of enforcing that regulation will issue a fine or penalty. These can be arbitrated in administrative courts, and this is a whole area of specialty called administrative law. If the violation is serious enough, the agency may sue in civil court.
In criminal matters, the specifics of the crime are almost always determined by statute (there’s no CFR title for felonies). In this case the prosecutor has to prove beyond a reasonable doubt that your actions meet the definition of some crime laid out in the law, not a regulatory violation.
There are all sorts of exceptions, naturally, but I sure as hell don’t know what they are.
No prosecutor is likely to be involved. The issue will probably be raised by some individual disliking the the oily taste of his tap water. Again, the judge will discard the regulation if he finds it to be at odds with the intent of the law (*)
(*) Though in France, the parliament can only pass statutes regulating matters specifically listed in the constitution. And it happens that in your example, the constitution says " Statutes shall also lay down the basic principles of […] the preservation of the environment" , so defining the exact quantity of oil allowed in your tap water (not exactly a “basic principle”) will probably be considered as outside the scope of the law by the judge, in which case a recent regulation by the executive will prevail over an older statute voted by the parliament (but, weirdly enough, not over an older international agreement like an EU regulation). However this is rather the exception. The rule would be that the “offending” regulation will be discarded, as I said above.
thanks to all.
friedo’s comment:
“he very statutes which are regulated delegate rulemaking authority to a particular executive-branch agency”
makes it clear. I was wondering how the exec branch could change the meaning of a law through a regulation-now I see that congress gives them that authority. Which is smart.
interesting comment re France. the legislative power is limited to what the constitution allows. Kind of like what the US framers intended but never happened here.
Thanks
Same situation in the UK. An Act of Parliament can explicitly state that a branch of the Executive shall have the power to make Regulations. The Regulations must be within the limits of this delegated authority. Of course not all Acts have Regulations below them and not all parts of Acts leading to Regulations need further detail to be provided i.e. in many cases the Act itself is enforceable.
In Europe there is the next level up - as clairobscur alluded to - of EU Directives. EU directives are are effectively the laws of the European Union but they are not directly enforceable in the member states. The Directives require each country to enact the requirements into domestic law within a certain period of time - which in turn can lead to Regulations.
One of the complaints of anti-EU people in Britain is that we over regulate and over enforce EU Directives. So the UK, through UK regulators, always takes the strictist interpretation of the Directive while other countries just do the minimum that won’t inconveience any local pressure groups (normally French farmers ). If a country does not implement a Directive the European Commission (sort of the EU’s executive) can take the offending country to the European Court or if someone is prosecuted under an Act or Regulation derived from the an EU Directive they can ultimately appeal to the Europe (although the House of Lords - the UK’s highest appeal court - has the right to use EU requirements to over-ride UK law without referring up to the Eurpoean Court).
As always should state IANAL and these are just my understanding.
Well, strictly speaking, the purpose of federal regulations is to clarify how a statute should be implemented, and not to change the meaning of the statute. An example would be a statute barring some group of factories from dumping a “harmful” level of Chemical X into a river, with authority delegated to EPA to determine what constitutes a harmful level.
This isn’t true. Congress (or the state legislatures) can write laws that are very specific about what is illegal and are directly enforceable. Consider this random example: H.R. 6519, which amends “the Immigration and Nationality Act with respect to temporary admission of nonimmigrant aliens to the United States for the purpose of receiving medical treatment”. It specifically adds the following to the regulation on who can reside in the United States:
As you can see, Congress chose to amend the regulations directly and did not delegate the change to its enforcement agencies.
). If a country does not implement a Directive the European Commission (sort of the EU’s executive) can take the offending country to the European Court or if someone is prosecuted under an Act or Regulation derived from the an EU Directive they can ultimately appeal to the Europe (although the House of Lords - the UK’s highest appeal court - has the right to use EU requirements to over-ride UK law without referring up to the Eurpoean Court).