Introduction toFederal and State Agency Rulemaking
Introduction toFederal and State Agency Rulemaking
Public health governance at granular level
Agencies write and enforce rules implementing
public health laws
Rules are equal to laws in legal power
Agency officials are not elected
Therefore, more checks and balances around
agency conduct
Notice and comment periods
The Function andPower of Executive Agencies
Three Main Powers of Agencies
Even though it’s all occurring in the executive
branch, agencies have:
Executive power: Judicial power:
Legislative power:
enforcement of adjudicate disputes
power to write rules
regulations through over agency-related
and issue
inspections, issues
regulations
sanctions
Limits on Agency Powers
Because agencies have so much of all three kinds
of power, there are strict rules about that power.
Agency authority derives from its enabling
statute.
The statute passed by Congress gives the agency
the power to act.
But agencies must act only within the scope of
their delegated authority. Agencies cannot cross
the line.
The Rulemaking Process
The Rulemaking Process
Agencies must follow specific rules in the
rulemaking process
Fairly, publicly, and within scope of delegated
legislative authority
Federal and state administrative procedure acts
govern the process
Two types of rulemaking
Informal
Formal
Informal Rulemaking
Also known as “notice and comment”
Three requirements
1. Prior notice (publication in Federal Register)
Time, place, nature
Legal authority (enabling statute)
Description of subject
2. Accepting written comments
3. Statement of basis and purpose of rule
Often several iterations before final
Most rulemaking follows this process
Formal Rulemaking
On-the-record hearing
Presentation of oral and written evidence
Cross-examination of witnesses
This type of rulemaking is only required if the
enabling statute requires it or if the agency action
results in the deprivation of property or liberty of
an individual
Notes:
Notice that a rule is being put out
Public comments
Judicial Review of Agency Rulemaking
Chevron Deference
When determining whether an agency stayed
within its scope of delegated authority, the court
uses yet another test/rule for judicial review.
This test/rule is called the Chevron deference,
named after a case where the rule was formed.
This rule allows agencies wide, but not unlimited,
deference in rulemaking.
Chevron Deference (cont.)
Step 1: If Congress has directly spoken to the
precise question at issue, the agency must give
effect to that congressional intent and courts must
enforce Congress’ mandate.
Step 2: When the enabling statute is ambiguous,
courts usually defer to agency action so long as
the interpretation is not arbitrary or capricious
(i.e., without reason).
How Much Deference Under Step 2?
When a court decides to give an agency deference under
step 2, the amount of deference varies depending on:
The degree of care the agency took in arriving at its
interpretations
The agency’s consistency, relative expertise, and formality of
the proceedings
The persuasiveness of the agency’s position
The grant of deference under step 2 does not always
mean that the agency wins; the court will balance the
above.
The Exception to the Chevron Deference
There are three circumstances in which a court will
not grant the Chevron deference.
1. Congress has not granted the agency the power
to interpret the statute
2. Congress has directly spoken to the precise
question at issue
3. The agency’s action raises significant
constitutional questions
When the Chevron DeferenceBecomes the Skidmore
Deference
However, when the court determines that
Congress has not given the agency the power to
interpret the statute, agencies still have what’s
known as the Skidmore deference.
The Skidmore deference says that the agency’s
interpretation of the statute is entitled to respect
only to the extent that it’s persuasive
(thoroughness, valid reasoning, consistency with
agency opinion).
Nondelegation Doctrine
Legislatures may not delegate policy-making functions to
the executive branch (i.e., to the agency).
Legislatures must provide reasonably clear standards for
agency rulemaking (cannot be so vague as to give the
agency unfettered discretion to set policy).
It is rarely used at federal level; states use it more
frequently.
However, where an enabling statute is vague, courts may
use the nondelegation doctrine to interpret agency
authority narrowly.
Power to Compel Agency Action
Power to Compel Agency Action
Agencies may decide not to act (or stall), even when
Congress has clearly instructed the agency to do so.
Interested persons (individuals, public interest groups,
industry, etc.) may file a “citizen’s petition” with the
agency asking it to regulate.
If the petition is denied (the agency chooses not to act)
it can be appealed to federal court in certain
circumstances.
Also, the enabling statute may include a right to court
review of the petition denial.
Deregulation and New Governance
Deregulation and New Governance
Negotiated Self-regulation: Preemption:
rulemaking: industry chooses to federal law does not
brings stakeholders adopt voluntary allow state to
together to negotiate standards regulate in a certain
the text of a area
proposed rule
Self-policing:
Agency incapacity: industry itself is
starve agency for responsible for
funds ensuring regulatory
compliance
