I hope this isn’t a double-post as my PC lost the page when posting the question, and now I don’t see it posted on the Board. Anyway, the question is this:
What is the difference between a Federal Law (USC) and Federal Rule (CFR)? Let’s use the Clean Water Act, for example. Congress passes some Law which I presume becomes part of the USC, correct? Also, once passed, the Act is the Law, correct? After this, is the regulatory agency (i.e.: EPA) now free to write the details of this law…and these are the Rules published in the CFR???
Very Confusing! How does this all work, and what is the technical difference (in simple terms) between a Law, Act, and Rule???
As part of legislation (as codified in the USC, an Act may affect many different areas of the code, so the Clean Water Act may show up in several areas of the code as law), Congress may authorize different agencies to make rules. (as published in the CFR). The idea is that Congress can’t be bothered, and isn’t equipped, to deal with drafting complex regulations. They can set out basic directives, but it is better to let the proffesionals in the agencies draft the actual rules.
These rules will be given the force of law by the courts, usually, so long as they are not clearly contrary to the intent of Congress, and Congress has authorized the agency to make rules when it passed the law. See Chevron v. someone or other. (It is usually called the Chevron rule, or Chevron test).
There are some limitations on the abilities of Congress to deligate power, they can’t violate the Constituional guerentee of seperation of powers etc. So it is important to look at the nature of the agency to which the rule making power is delegated etc… there may also be requirements as to how the rules are made, public comments etc… Administrative law is a complicated area.
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Now on to your question.
Under the Constitution, the legislative powers of the United States are vested in Congress. U.S. Const., Article I, Section I. Congress exercises this power when it enacts “statutes” a.k.a. “acts,” a.k.a. “laws.” Laws (a.k.a. “statutes” or “acts”) validly enacted by Congress have the force of law (i.e. the Courts will enforce them), as long as they are consistent with the Constitution.
Congress also has the authority to delegate to administrative agencies–who are part of the executive branch–power to make rules. While nowadays we take this for granted (although not everyone is happy with it) in the early part of the Twentieth Century, especially during the FDR administration when the size and scope of administrative agencies grew enormously, this “delegation” by Congress was extremely controversial. The essence of the objection was that it violated the separation of powers: Congress was supposed to pass laws, NOT the executive branch, and Congress could not delegate its legislative power to the executive branch. It’s all very interesting (really) but it’s a story for another time.
It is up to Congress to decide whether, and how much, rulemaking authority each agency should have. The Environmental Protection Agency, for example, has considerable authority to make rules related to, wait for it, protecting the environment. These rules (aka regulations) promulgated (not “enacted”) by the agency are published in the Code of Federal Regulations. These rules have the force of law so long as they do not contradict statutes passed by Congress. (Note the parallel with the principle that statutes are valid so long as they are consistent with the Constitution.) This principle may sound simple, but in fact armies of lawyers spend their careers arguing about whether, when and how a certain regulation does or does not contradict a certain statute.
So, here’s how it goes in the example you mentioned. Congress passes the Clean Water Act. This act will then be codified in the US Code. BTW the codification does not happen immediately, BUT the act has the force of law as soon as of its effective date, whether it has been codified or not. Codification just makes it easier to look up.
Under the Clean Water Act, Congress explicitly grants the EPA authority to promulgate rules in order to enforce the act. The EPA then goes through a process (called notice and comment rule making) of formulating these rules. These rules are published in the Code of Federal Regulations, and “have the force of law.”
When lawyers set to arguing before a Court about who did or did not violate the law, they will usually wind up citing relevant statutes (enacted by Congress) and relevant rules (promulgated by an administrative agency.) In practice, most of the time when you cite a federal statute, it is in the US Code, but sometimes its too new, so you have to cite to the actual Public Law Number (and that is a pain in the rear). As far as I know, all regulations are always published in the CFR.
On rare occasions, a Court will find that there is a contradiction between a statute and a regulation, and in that case, it will hold that the statute trumps the regulation, and the regulation is invalid. (There is an even further wrinkle: the Supreme Court has said that under certain circumstances, Courts should defer to an administrative agency’s interpretation of statutes related to that agency, and thus to the agency’s interpretation of whether its own rules are consistent with those statutes. Again, that’s another story for another time.)
To sum up, the hierarchy goes
Constitution;
Statutes enacted by Congress under the power granted to it by the Constitution (usually but not always these statutes are codified in the USC); and
Regulations promulgated by agencies under power granted to them by Congress (these rules or regulations are published in the CFR).