Administrative Regulations

AuthorBeau Steenken, Tina M. Brooks
Pages83-105
83
Chapter 4
Administrative Regulations
I’m not the smartest fellow in the world, but I can
sure pick smart colleagues. Franklin Delano
Roosevelt
Let us never forget that government is ourselves and
not an alien power over us. The ultimate rulers of
our democracy are not a President and senators and
congressmen and government officials, but the
voters of this country. Franklin Delano Roosevelt
4.1 Learning Objectives for Chapter 4
In working through this chapter, students should strive to be able to:
Describe the origins and authority of administrative regulations as a
source of law.
Assess the primary publications of federal administrative legal
materials: the Code of Federal Regulations and the Federal Register.
Appreciate the similarities and differences between federal
administrative regulations and state administrative regulations.
Evaluate the various pieces of information provided in regulatory
publications.
Evaluate the use of administrative notices, administrative decisions,
and other administrative materials in interpreting administrative
regulations.
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4.2 Delegated Rule-Making Authority
As discussed in Chapter 1, each branch of government under a Separation
of Powers system creates its own source of law. In Chapters 2 and 3, we
covered the sources of law that most lay-people would recognize as law:
constitutions, statutes, and judicial opinions. However, in the American
legal system, the executive branch also contributes rules to the body of law.
Executive-made rules take the form of administrative regulations, which
various executive departments, agencies, and commissions issue under an
explicit delegation of rule-making authority from the legislature. Essentially,
the legislature passes a statute with a broad aim, and then delegates a
particular agency of expertise to provide more specific rules aimed at
achieving the broad goal. Lawyers call a statute that creates an agency to
regulate a particular area an “organic statute” or “organic act.”104 Similarly,
an “enabling statute” delegates additional authority to an already existing
agency.105 Both organic statutes and enabling statutes establish broad aims
desired by the legislature and create mechanisms for agencies to provide the
details. As such, regulations tend to be much more specific in nature than
statutes.
Executive agencies possessing delegated legislative authority have existed in
the Anglo-American legal tradition at least since the 1530s, which happens
to be when people also first began recognizing the primacy of legislative
rule-making authority to begin with.106 Since their introduction in Tudor
times, however, executive branches tended to exercise delegated rule-
making authority somewhat sparingly for the next four centuries or so.
Then, in response to the Great Depression in the U.S., the creation of
executive agencies and the use of administrative regulations exploded with
the New Deal of the 1930s. The Roosevelt administration pushed for the
creation of a veritable “alphabet soup” of federal agencies, partially as an act
of job creation, but partially as a way of modernizing the U.S. economy.107
104 See BLACKS LAW DICTIONARY 1634 (10th ed. 2014).
105 See BLACKS LAW DICTIONARY 1634 (10th ed. 2014).
106 See generally G. R. ELTON, THE TUDOR REVOLUTION IN GOVERNMENT;
ADMINISTRATIVE CHANGES IN THE REIGN OF HENRY VIII (1953).
107 For a riveting account of Roosevelt’s life and Presidency, see H. W. BRANDS,
TRAITOR TO HIS CLASS: THE PRIVILEGED LIFE AND RADICAL PRESIDENCY OF
FRANKLIN DELANO ROOSEVELT (2008).

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