Bureaucrats: Lawmakers Or Law Executors?

The question of whether bureaucrats can make laws is a highly debated topic. While some argue that bureaucrats should not have the power to make laws, others recognize that bureaucrats have considerable authority in the policy-making process and can interpret and rewrite laws. In the United States, the policy-making process is often compared to building a house, where Congress and the President decide what kind of house to build, and the bureaucracy is the contractor that builds the house. The bureaucracy's expertise gives it significant influence over how policies are implemented. Bureaucratic agencies have quasi-judicial authority and can set up administrative courts to settle disputes about their rules. While Congress can pass laws, it often delegates the responsibility of determining the specifics of policy implementation to agencies, giving them considerable leeway in interpreting and enforcing the law.

Bureaucrats can rewrite laws

While bureaucrats do not have the power to make laws, they do have the authority to rewrite them. This is done through a process called "rule-making" or "rulemaking". Rule-making is the process of creating and issuing rules that enforce laws passed by Congress. These rules are published for public view and become federal law. This process gives bureaucrats considerable authority over how laws are implemented and enforced.

For example, the Federal Communications Commission (FCC) has been accused of rewriting the Telecommunications Act of 1996. Within six months of the law's enactment, the FCC declared itself the victor in the "telewars in the states," issuing a 600-page document with presumptive national pricing standards for local telephone markets. The FCC's action was criticized for contradicting key provisions of a democratically enacted law and the principles of limited government and American constitutionalism.

Bureaucratic agencies have also been granted quasi-judicial authority through the Administrative Procedure Act (APA). The APA allows bureaucratic agencies to set up administrative courts, separate from the judicial court system, to settle disputes about their implemented rules. These courts, sometimes called the "hidden judiciary," are presided over by administrative law judges who handle cases such as Social Security requests, immigration, and labor disputes.

While Congress has the power to make laws, it relies on bureaucrats to fill in the details of implementation. This is because Congress cannot possibly legislate on every minute detail of a law, so it delegates this authority to bureaucracies with relevant expertise. This delegation of authority gives bureaucrats significant influence over the interpretation and enforcement of laws.

To monitor and control the bureaucracy, Congress has several tools at its disposal. These include oversight mechanisms such as the Congressional Review Act, which gives Congress the power to overturn major rules, and "fire alarm oversight," where citizens and interest groups alert Congress to issues within bureaucratic agencies. Additionally, Congress can influence policy execution by controlling the funding of bureaucratic agencies and approving presidential appointments to leadership positions.

Congress should have the power to make laws, not bureaucrats

In the United States, the policy-making process is often likened to building a house. In this analogy, the American public is the owner, Congress and the President are the architects, and the bureaucracy is the contractor. The architect (Congress and the President) decides what kind of house to build and then hires a contractor (the bureaucracy) to build it. The contractor has likely built many houses before and therefore has more expertise in the building process than the architect or owner. This expertise gives the bureaucracy significant authority over how the house is built, and the same is true for the American bureaucracy in the policy-making process.

While Congress has the power to make laws, it often does not establish all the details of how a policy will be implemented. Instead, Congress passes enabling legislation that grants power to an agency to work out the specifics. Bureaucratic agencies have been granted quasi-judicial authority, allowing them to set up administrative courts to settle disputes about their implemented rules. These courts, separate from the judicial court system, are sometimes called the "hidden judiciary." Approximately 2,000 administrative law judges preside over hearings like Social Security requests, immigration cases, and labor disputes. Policy can also be developed through adjudication, which is the process of settling disputes about the effect of policy through these administrative courts.

However, there is growing concern that bureaucrats are making up laws and policies without being checked by the branch represented by the people in Congress and the Senate, as intended by the Constitution. For example, the Federal Communications Commission (FCC) has been accused of rewriting the Telecommunications Act of 1996, mocking key provisions of a democratically enacted law. This has led to debates about the devolution and deregulation of federal authority and the role of the administrative state in governing.

To address these concerns, Congress can monitor the bureaucracy through "police patrol oversight" by regularly overseeing the outputs and actions of agencies. Alternatively, Congress can implement "fire alarm oversight," where citizens and interest groups monitor agencies and call for Congress or the courts to address any issues. Congress can also intervene in the rule-making process and has the power to overturn major rules. Additionally, since Congress establishes the funding for bureaucratic agencies, it can influence policy execution by adjusting an agency's funding or directing how funds are spent.

In conclusion, while bureaucrats play a significant role in policy-making due to their expertise, Congress should ultimately have the power to make laws. Congress can ensure this by utilizing oversight mechanisms, intervening in the rule-making process, and influencing policy execution through funding decisions.

Bureaucratic agencies have quasi-judicial authority

Bureaucratic agencies have been granted quasi-judicial authority. Quasi-judicial means "court-like". It refers to a proceeding conducted by an administrative or executive official or organisation that is similar to a court proceeding, such as a hearing. A court may review a decision arising from a quasi-judicial proceeding, and such decisions are often legally enforceable under the laws of a jurisdiction.

In the United States, bureaucratic agencies can set up administrative courts to settle disputes about their implemented rules. These courts, sometimes called the "hidden judiciary", are separate from the judicial court system. Approximately 2,000 administrative law judges preside over hearings like Social Security requests, immigration cases, and labour disputes. Policy can also be developed through adjudication, which is the process of settling disputes about the effect of policy through administrative courts.

The United States federal government has independent agencies that exist outside the federal executive departments and the Executive Office of the President. These include the Federal Trade Commission, the Federal Energy Regulatory Commission (FERC), the Federal Housing Finance Agency (FHFA), the Federal Maritime Commission (FMC), and the Federal Mediation and Conciliation Service (FMCS). The Securities and Exchange Commission (SEC) is another example of an independent agency, established to protect investors who buy stocks and bonds.

While bureaucrats do not have the power to make laws, they do have considerable authority over how laws are implemented and interpreted. They can rewrite laws, and their rules are enforceable just like federal statutes. This has led to criticism that bureaucrats are allowed to "make up the law and make up policies without being checked by the branch represented by the people".

The REINS Act seeks to restrict executive branch power

The policy-making process in the United States is often likened to building a house. The American public, or the owner, hires an architect (Congress and the President) to build a house. The architect then hires a contractor (the bureaucracy) to build the house. The contractor, in this case, the bureaucracy, is assumed to have built many houses and, therefore, has considerable authority over how the house is built.

The REINS Act, or Regulations from the Executive in Need of Scrutiny Act, is a piece of legislation designed to amend the Congressional Review Act (CRA) of 1996. The Act seeks to address the separation of powers between Congress and the executive branch in administrative rulemaking, particularly concerning the nondelegation doctrine. The REINS Act aims to expand the CRA to require congressional approval of certain major agency regulations before those regulations are implemented. This would give Congress the authority to halt the initial enactment of certain regulations, rather than relying on resolutions of disapproval after a rule takes effect.

Supporters of the REINS Act argue that it will restore the separation of powers, make Congress accountable for regulatory decisions, and increase transparency in the rulemaking process. The Act is seen as a way to restrict the power of the executive branch and give proper oversight authority to Congress, specifically through the regulatory process. Some members of Congress have expressed their support for the Act, stating that it is necessary to stop executive overreach and give power back to the people.

However, critics of the REINS Act argue that it is unnecessary and deeply flawed. They believe that the regulatory process already allows ample opportunities for input, including the opportunity for Congress to vote to nullify a rule. Requiring Congress to pass each rule before it can go into effect would taint the regulatory process with political considerations, endanger the public by delaying crucial safeguards, and usurp powers reserved for the executive and judicial branches. Critics also argue that the Act would handicap federal agencies and add a significant workload to a legislative body that already struggles with time constraints.

Chevron deference allows bureaucrats to interpret the scope of laws

Bureaucrats are not supposed to make laws; that power is vested in Congress. However, bureaucratic agencies have been granted quasi-judicial authority. The Administrative Procedure Act (APA) allows bureaucratic agencies to set up administrative courts to settle disputes about their implemented rules.

Chevron deference is a jurisprudential doctrine that has underpinned US administrative law since 1984. It was established by the Supreme Court's ruling in Chevron U.S.A. v. Natural Resources Defense Council. Chevron deference allowed bureaucrats to interpret the scope of laws by giving federal judges the latitude to let agencies interpret the statutes they administer when a dispute arises.

The Supreme Court articulated a two-part test for Chevron deference. First, judges examine the wording and context of the statute in question to see if Congress's intent is clear. If it is, the matter is settled, and the agency must follow the letter of the law. However, if the statutory language is ambiguous, the reviewing court must defer to the agency's choice in how to carry out the law. The idea is that expert agencies are better suited than federal judges to make policy choices that Congress left open.

In June 2024, the US Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises v. Raimondo, stating that:

> The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.

The Chevron deference doctrine applied when a legislative delegation to an administrative agency on a particular issue was implicit rather than explicit. In such cases, the reviewing court may not substitute its interpretation of the statute for a reasonable interpretation made by the administrative agency.

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