I can confirm that regulations are valid only where there is specific authorization to write them or where the statute leaves ambiguity that requires clarification from the agency charged with enforcing it.
My New York State job was with an assistance-providing agency with no regulatory powers. I was the person charged with drafting the only regulation we were empowered to formulate: the procedures for making a FOIA request for information from the agency (which every agency was charged with having in place).
That’s right. The agency has no inherent power to enact legislation or amend any existing legislation, but are authorized to promulgate regulations which are not inconsistent with the Act. These regulations are, for the most part, implementing regulatons. The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. Time periods for arguments against any proposed regulation in the Register or for any argument to amend the same applies only to those proposed regulations which are substantive. Procedural matters are not subject to comment. The Code is divided into 50 titles which represent broad areas subject to federal regulation.
The contents of the Federal Register are required to be judicially noticed (44 USC 1507). However, federal agencies also promulgate internal “Rulings” interpreting its own Regulation. These Rulings are not required to be judicially noticed, but courts will give great deference to the agency’s interpretation of its own regulation.
Actually, it isn’t right. The authority of agencies to create binding regulations is longstanding in American law. Justice Breyer, in his scholarly treatment of this area of law (and administrative law is considered his specialty), dates it to at least 1875, with antecedents in American and English law before that.
Modernly, it is governed by the Administrative Procedure Act of 1946, which establishes our framework of administrative agencies, their powers, and their procedures, together with enabling legislation for each agency (for instance, the Securities Exchange Act of 1934 (which created the SEC) or the National Labor Relations Act (which created the NLRB)). You will note that these agencies antedate the APA (as did their rulemaking (SEC) and/or adjudicative (NLRB) power); that act was passed to standardize the procedures of what was at that time a new and rapidly increasing branch of government. The modern administrative state has been with us ever since.
Chevron v. NRDC was decided in the 1980s, well after the development of the great American administrative bureaucracies (the fashion for “organizational theory” begun in the 1950s represents the high-water mark of this mode of governance). What Chevron did is to instruct courts how to treat this new quasi-branch of government that does not appear in the Constitution or our traditional account of the interplay among the three conventional branches. To wit, Chevron teaches that where a Congressional enactment admits of more than one reasonable interpretation and belongs to the portfolio of an administrative agency, the interpretation that the agency selected is the one that the court must apply. That is, Chevron establishes the deference that the courts owe administrative agencies when those agencies are acting in the area of authority and pursuant to equivocal Congressional directions. (Of course, if the statute is not ambiguous, the plain meaning of the statue controls, regardless of whether the agency or the court would have passed different legislation).
Thank you, Kimmy and Barbitu8. Follow-up question: Could Congress give a regulation-making power to the President and his Cabinet, in the same way that is possible in the Anglo-Canadian system?
The usual branch that administrative agencies belong to is, in fact, the executive (however, in Franklin v. Massachusetts, 505 U.S. 788 (1992), the Court held that the President is not subject to the APA; cabinet-level agencies are within the APA). In addition to the agencies that function within the cabinet departments, there are also what are called independent regulatory agencies. While the independent regulatory agencies do answer to the President, their leadership structures are designed to abate the amount of Presidential influence. The IRS and EPA are examples of Presidentally-directed non-independent agencies. The SEC and the NLRB are examples of independent regulatory agencies.
The Advice and Consent Clause of Article II, which controls how offices of the United States government will be filled specifies, “but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” You will note that, importantly, Congress is not mentioned as having the power to fill offices. As the Supreme Court explained in Buckley v. Valeo (where the first Federal Election Commission, some of whose members were selected by members of Congress, was held to unconstitutionally violate the separation of powers), the Framers designed this as a check on the Congress, which could create offices, but not appoint the officeholder.
(I will say I am not aware of any law-administering office appointed by the judicial branch. ETA: Perhaps the U.S. Sentencing Commission qualifies.)
Well, a delegation to a Cabinet agency is like a delegation to the President, for all intents and purposes. Panama Refining requires any such delegation to carry Congressionally-established parameters (so that the delegate could be said to be carrying out Congressional directives). In that case, Congress delegated to FDR. Although the Court struck down the act, they did so for the lack of an intelligible principle to guide the delegate’s decision-making, rather than because of the person in whom the decision-making power reposed.
No in theory, yes in practice. We’ve got something called the non-delegation doctrine, which says that the legislature is not empowered to devolve the quintessential legislative function on the Executive. But we do have some laws that grant extremely great latitude to the administering agency such that their rulemaking power cannot be considered different from legislation in terms of its effects, the broadness of scope, or the impact on those regulated. Mostly, the non-del doctrine is an artifact of an earlier time, when the courts were not as complacent about the degree of regulatory authority devolved upon the Executive as they are now. So, given that our common law system never likes to overturn anything, but just pretends that out of favor doctrines don’t apply to today’s cases (instead of merely admitting they’re out of favor), the non-del doctrine now is a phrase trotted out in front of a cursory dismissal in court opinions.
There was a brief flare-up of the doctrine back when I was in law school (American Trucking Associations v. EPA), and I had an infinitesimally small role in working on the Supreme Court case on the side of the non-delegation supporters. I of course took on my responsibilities with the requisite professional zeal, but I can’t say I’m sorry we lost.
Maybe this doesn’t answer your question – I’m too tired and lazy to read the whole thread. And anyway, I’m sure Kimmy, who clearly knows his Admin Law, will show up tomorrow and give a more detailed response.
Thanks for the detailed explanations, but what I posted is correct: “The contents of the Federal Register are required to be judicially noticed (44 USC 1507).” Chevron established that the courts must give regulations deference, but not if it is contrary to the statute, which is another way of saying the same thing. However, each agency also promulgates internal Rulings, of which the courts need not follow. Those Rulings are interpretations of its own Regulations.
I wish to clear up an ambiguity in the use of “Act.” “Act” can have several meanings. It can be a synonym for a statute, but it can also mean the embodiment of statutes covering a specific subject, such as the Tax Act, the Social Security Act, the Security and Exchange Act, etc.
Not in Canada, where the OP is posting. Our Acts are stand-alones within the Revised Statutes. The Income Tax Act, for example, is a single, huge, Act, not a collection of laws found at different parts of a Code.
I don’t think barb is entirely correct. The Social Security Act, for instance, is modified all the time, it is true. But it was originally a single Act, and, although many, many later statutes have modified it, they did so by saying, e.g. “Section 104 of the Social Security Act of 193x is modified to add the following paragraph: (b) or their dependents.” (Made up example.) Sometimes (not uncommonly), these will be huge alterations in both volume and substance. But there’s still a single Social Security Act – it just reads very different than it once did.