Last time, I wrote an overview of the three branches of government and how a bill becomes a law. This week I’ll explain the administrative state.
When a law is created, it leaves a lot of room for interpretation. For example, a statute might read “Rental properties should be habitable.” What does “habitable” mean? What kind of rental property? Should this law cover commercial, agricultural, and residential properties? Habitable for who? A person with disabilities, a family, or in the case of agricultural property farm animals or humans? This is when the administrative state steps in and creates rules and policies.
Laws passed by Congress typically include a delegation clause enabling an administrative agency to administer the act and interpret its clauses within the confines of the statute. So, if you think of laws as an umbrella, the Constitution is the largest umbrella and all laws must be covered by the Constitution, and administrative rules must fit under the statute. Further, administrative policies must be in compliance with administrative rules, the statute deriving the power, and the constitution.
Administrative agencies regulate private conduct such as consumer protection, public lands, entitlement programs, safety regulations, and law enforcement.
When an agency wants to create a rule, it can do it through two ways: rulemaking or adjudication. The agency is limited by what congress allows the agency to do under the law and procedural fairness. Rulemaking requires a formal or informal notice and comment procedure. The public (private citizens, interest groups, and businesses) are allowed and encouraged to comment about the legality and interests affected by the proposed rule. The agency reads all of the comments, in some cases is required to reply to all comments, and can modify the final rule to accommodate the input by the public.
Adjudication is similar to a judge making a decision as a response to an action by an individual person or business. Like the judicial branch that interprets laws, adjudicators interpret rules to determine the ambiguity of the rule and if the party violated the rule. Adjudications have an appeal process and can be heard in federal court.
So I’ve just used a lot of big words and legalese, which I promised I wouldn’t, but it’s hard. So let me show you by example. Congress passes a law allowing Thanksgiving Leftover Day to become a federal holiday. It delegates enforcement to the Office of Personnel Management (OPM). OPM creates a rule defining a “federal holiday” and making sure its employees are given the day off. All federal employee bosses must follow OPM’s rules. A federal boss decides to not follow the directions of OPM (and is a Grinch). The boss who is regulated by OPM, could face a hearing by OPM about her not following the statute.
Lastly, administrative agencies are managed by the executive branch, the President. The President appoints agency directors and the Senate must approve the directors. Because of the inherent politicization of the presidency (see the last 240+ years of American history), agency appointees are also political and determine the policies of the agency and its impact on the government. For further reading, Hamilton’s Federalist Papers discuss, in length, the idea of the administrative state. These papers are informative, but I admit, I prefer the musical.