When agencies engage in rule-making, what
they do looks very much like what Congress does when it passes a law. The thing that emerges from that process,
the rule, has the same legal effect as a statute. It's enforceable in court, it can create criminal
penalties, civil penalties, can preempt state law. All of the things that a statute can do, a
rule can do. What's the difference? Well, there's a very large difference in the
process, the procedure by which those different legal norms are produced. Congress produces laws. The Constitution, in Article One, Section
Seven, specifies a process by which those laws are made. So that process is very cumbersome. It's designed to bring into play at least
three bodies with different constituencies: the House, the Senate, the President. There are a lot of what political scientists
call veto points built into that process. A lot of ways to derail legislation on its
way to becoming law. It can be stopped in the House, it can be
stopped in the Senate, it can be stopped in committees, it can be stopped at the level
of the President. Each of those ways of stopping something from
becoming law is a veto point. Now, shift to agency rule-making. Agency rule-making loses those constitutional
veto points. For an agency to promulgate a rule, all you
need is a majority of the agency. If there's a single head of the agency, that's
one person. If it's a multi-member commission of let's
say five people, you need three of them. On the other hand, there are certain procedures
or hoops that agencies have to jump through that Congress does not. Administrative agencies engaged in rule making
that's going to result in these rules that look and act like statutes, by statute have
to jump through a whole bunch of hoops. They do have to provide advanced notice of
what they're doing. They have to give people an opportunity to
explain why what they're doing is a bad idea. Once they do it, they have to explain what
they did. Once Congress enacts a law, it doesn't have
to write an essay explaining why the law it passed is such a great idea. When administrative agencies promulgate rules,
they have an essay requirement that comes with it. They have to write a long, detailed explanation
that is going to be looked at by a court, to make sure that they haven't skipped any
steps in their reasoning. Just like on a math test, agencies have to
show their work. So there are procedural obstacles to agency
rule-making that don't exist for actual law making, but they're different kinds of procedures. They're not the procedures identified in the
Constitution for the promulgation of legally binding norms. But substantively, once all the hoops have
been jumped through, once all of the procedures have been followed, an agency rule is just
as potent a legal instrument as a statute.
