Laws Vs. Regulations

My understanding is that in general, regulations issued by the Administrative branch of government are supposed fill in ambiguities in the laws passed by the legislative branch. However, in the case of the HC Reform Act, it appears that various federal agencies are simply overriding sections of the law, at least temporarily. They have been issuing waivers to various components of the law, in some cases on a case-by-case basis and in some cases on a wholesale basis.

Is there anything specifically written into the HCR Act that gives them this authority, or do they always have this authority? (And if the latter, how was this derived?) Or do they not have any technical authority to do this, but rely on the fact that if they don’t enforce a law it’s moot anyway?

If they’re issuing waivers, it’s because the statute allows them to issue waivers, or because they are actually waiving new regulations and not statutory requirements.

Lemme straighten out some civics for you: there’s no “Administrative” branch of government. The three branches are Legislative, Executive, and Judicial.

Regulations are published by regulatory agencies, because the legislature has enacted statutes that say such stuffs as, “We hereby create Agency X. Agency X is entrusted with overseeing Important Public Purpose Y, and Agency X shall have the power to publish regulations to further that purpose.” In short, the power lies with the legislature, which by statute passes that power along to the relevant regulatory agency. The agency doesn’t have any powers that are not specifically granted to it by the legislature.

Not having read the Act in detail, I have to assume that any waivers being granted are permissible under the Act.


The only part of the health care act law/regulation I can comment is the way the IRS is modifying the law’s specific instructions regarding 1099s.

The law, as written, says that businesses will have to start issuing a 1099 for virtually everything - to corporations as well as individuals and for products as well as services. This is going to be a nightmare. Even the IRS doesn’t like it.

So the IRS has issued a regulation/ruling that issuing a 1099 is not necessary if you pay by credit/debit card. The justification is that merchant service providers are already issuing a 1099 for all payments by credit card, so such payments would be double-reported under the new law.

The IRS has the authority to do this only indirectly. What I mean is that the health care act did not say “The IRS can modify this requirement.” However, the IRS, as an agent for the Treasury department of the executive branch, is tasked with (among other things) interpreting the law and coming up with a way to implement it. Ultimately, then, that authority comes from the President’s office.

In fact, the IRS’s regulation shows the limits of their power - they’ve justified the change on the basis that the new law overlaps an existing one.

Anyway, I suspect this same implied ability to interpret and implement the law is where these additional waivers are coming from, but I really don’t know the details about anything else.

There are many who would argue, however, that the administrative bureaucracy currently in place (at least since 1946) constitutes a de facto fourth branch of government, given its role in making law (regulations carry the force of law as long as you can prove that the enabling statutes and the constitution allow them) and adjudicating disputes (all sorts of Article I tribunals are parts of regulatory agencies yet look and smell like courts). Certainly, the authors of the Constitution would be hard-pressed to envision the executive departments having so much scope.

Some other examples here:

This is the problem with the health care law and the recent financial reform law. These pieces of legislation are thousands of pages long, that most members of congress never read, and are full of ambiguities and holes that are left to the agencies to establish regulations. This results in there not being defined piece of legislation that individuals and businesses can look to understand the playing field. They are beholden to appointed beauracrats then passing regulations that are not consistent and may not have been in the spirit of the legislation that was originally passed. This should not occur regardless of which party is in office.

And people wonder why US businesses are hesitant to expand and grow. Who would be willing to make a significant investment of capital in this country when there is so much ambiguity with regard to compliance and the cost of that compliance.

And another:

This is not accurate. Hopefully, the laws passed are not ambiguous, although in some cases that is not so. Many, and probably most, statutes of this nature are not self-implementing. The administrative agency enacts regulations implementing the Act. Most of the regulations merely restate what the law states, but often they go into more details, including exceptions, exceptions to the exceptions, etc.

The regulation must be consistent with the statute. It can elaborate on it, provide exceptions, etc., but it must be consistent.

To complicate things further, the agency may pass Rulings, interpreting its own Regulations. Regulations, if consistent with the statute, have the force of law. Rulings do not. They are merely for internal use of the agency.

To be more specific and accurate, the Act (Social Security Act, Tax Act, etc.) provide for an administrative agency to implement the Act. Pursuant to the Act, the agency promulgates regulations implementing the Act. Many of the regulations read the same as the law in the Act.

The Agency also issues Rulings interpreting its own regs. The courts do not have to adopt the agency’s interpretation, but do give wide latitude to the interpretation of its own regs.

From a WSJ article on the waivers:

So it seems like at least in this case it’s written into the law.

I wouldn’t consider a Wall Street Journal editorial very good evidence.

Chevron is the starting point for an understanding of administrative law.

That’s not an article at all, it’s an editorial.