united-states constitutional-law us-constitution us-federal-government regulations
Where do executive agencies obtain their power to effectively legislate?
<p>Large portions of the Code of Federal Regulations are enacted by executive agencies such as the Federal Communications Commission and the Federal Aviation Administration, rather than by Congress. The parts that I have seen written by Congress are passed by bills that do not directly &quot;amend X CFR § Y.Z to say ABC,&quot; but instead &quot;direct the Federal XYZ Commission to amend X CFR § Y.Z to say ABC.&quot;</p>
<p>How do these executive agencies have the power to effectively legislate? Article 1, section 1 of the US Constitution says:</p>
<blockquote>
<p>All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.</p>
</blockquote>
<p>Can Congress pass, and have they passed, [a] law[s] giving some of their legislative authority to executive agencies?</p>

<p>Legislation passed by Congress grants authority to the Executive to make regulations relevant to a particular topic. It's common for Congress to pass laws that contain language like &quot;The Secretary/Administrator/whoever shall prescribe such regulations as may be necessary to carry out the provisions of this chapter.&quot; It might be illustrative to see how this practically works:</p>
<p>So let's look for an example. We'll go to the <a href="https://www.federalregister.gov/" rel="noreferrer">Federal Register</a>, which contains notices of proposed regulations. Choosing an interesting looking new one, we can look at <a href="https://www.federalregister.gov/documents/2023/01/19/2023-00702/national-organic-program-nop-strengthening-organic-enforcement" rel="noreferrer">National Organic Program (NOP); Strengthening Organic Enforcement</a>. That's the new final rule today that <a href="https://www.washingtonpost.com/business/2023/01/19/usda-rule-organic-fraud/" rel="noreferrer">tightens the rules for food products labeled &quot;organic&quot;</a>. Scrolling through the rule, there are some summaries, a table of estimated costs and benefits, and then we get to <a href="https://www.federalregister.gov/d/2023-00702/p-65" rel="noreferrer">the section headed &quot;Authority,&quot;</a> which tells us why the Executive Branch (in this case, the USDA) thinks it has the authority to issue this regulation:</p>
<blockquote>
<p>The Organic Foods Production Act of 1990 (OFPA) (7 U.S.C. 6501-6524), authorizes the Agricultural Marketing Service (AMS) to establish and maintain national standards governing the marketing of organically produced agricultural products. AMS administers these standards through the National Organic Program (NOP). Final regulations implementing the NOP, also referred to as the USDA organic regulations, were published on December 21, 2000 (65 FR 80548) and became effective on October 21, 2002.<a href="https://www.federalregister.gov/documents/2023/01/19/2023-00702/national-organic-program-nop-strengthening-organic-enforcement" rel="noreferrer">2</a> Through these regulations, AMS oversees national standards for the production, handling, labeling, and sale of organically produced agricultural products.</p>
</blockquote>
<p>Ok, so Congress passed a law in 1990 called the Organic Foods Production Act, and that tells the USDA to issue regulations related to the marketing of organic foods. If we <a href="https://www.law.cornell.edu/uscode/text/7/chapter-94" rel="noreferrer">turn to the relevant chapter of the US Code</a>, we can see language where Congress delegates to the Executive the authority to issue these regulations. For example, <a href="https://www.law.cornell.edu/uscode/text/7/6503" rel="noreferrer">one provision says:</a></p>
<blockquote>
<p>The Secretary shall establish an organic certification program for producers and handlers of agricultural products that have been produced using organic methods as provided for in this chapter.</p>
</blockquote>
<p>And then there's <a href="https://www.law.cornell.edu/uscode/text/7/6506" rel="noreferrer">a much longer section</a> (§ 6506) that lists the &quot;General Requirements&quot; for the organic food program. Some lay out specific details that need to be addressed in the regulations (e.g. Congress says the regulations have to provide for annual inspections of organic farms by certifying agents) and discretionary ones (e.g. Congress says that the regulations can make certain reasonable exceptions if a farm is subject to an emergency pest treatment program).</p>
<p>Other requirements are quite broad; one says that the regulation needs to &quot;provide for appropriate and adequate enforcement procedures, as determined by the Secretary to be necessary and consistent with this chapter.&quot; In other words, Congress isn't saying specifically how this should all be enforced; they're just saying the regulation should provide for the enforcement procedures the Executive considers to be necessary. In turn, the regulation goes into much more detail on inspections, paperwork that needs to be maintained and paperwork that needs to be filed with the government, mediation to resolve compliance issues, appeals procedures, and so on. Congress doesn't want to get into the nitty gritty of super-detailed stuff like the exact process for dealing with appeals of organic food violations. So the law Congress passed just says the Executive needs to include some sort of appeal procedure in the regulations, and it delegates the authority to figure out all those details to the Secretary of Agriculture and their staff, so long as they follow the general process for issuing regulations.</p>
<p><strong>So to sum up</strong>, executive agencies gain their authority to issue regulations when that power is granted to them by legislation (n.b. Congress's ability to grant that power is limited by the <a href="https://en.wikipedia.org/wiki/Nondelegation_doctrine" rel="noreferrer">nondelegation doctrine</a>). Sometimes that legislation may be quite specific, while others times it may be very broad and gives the Executive Branch significant discretion. For example (picking random new regulations):</p>
<ul>
<li><p>Congress <a href="https://www.law.cornell.edu/uscode/text/16/chapter-38/subchapter-IV" rel="noreferrer">said</a> the Secretary of Commerce should issue certain types of regulations related to fisheries, so the National Marine Fisheries Service <a href="https://www.federalregister.gov/documents/2023/01/19/2023-00979/fisheries-of-the-northeastern-united-states-atlantic-sea-scallop-fishery-closure-of-the-closed-area" rel="noreferrer">issued a rule</a> about the &quot;Closed Area I Scallop Access Area,&quot; wherever that is.</p>
</li>
<li><p>Congress said the Secretary of the Interior may issue regulations dealing with certain matters related to museums and archeological resources removed from Native American lands, and Congress passed another law that says that civil penalties should be updated every year based on inflation, so the Department of Interior <a href="https://www.federalregister.gov/documents/2023/01/19/2023-00982/civil-penalties-inflation-adjustments" rel="noreferrer">issued a rule</a> increasing the fines for noncompliance as Congress directed.</p>
</li>
<li><p>Congress <a href="https://www.law.cornell.edu/uscode/text/49/44701" rel="noreferrer">said</a> the Administrator of the Federal Aviation Administration shall issue various types of regulations related to aviation safety, so the FAA is <a href="https://www.federalregister.gov/documents/2023/01/19/2023-00886/airworthiness-directives-airbus-helicopters" rel="noreferrer">proposing</a> a rule about inspecting for corrosion and repairing or replacing affected parts of landing gears on certain Airbus helicopters.</p>
</li>
<li><p>Congress <a href="https://www.govinfo.gov/content/pkg/USCODE-2021-title16/pdf/USCODE-2021-title16-chap32-sec1431.pdf" rel="noreferrer">said</a> we're gonna have the National Marine
Sanctuary System and it &quot;shall consist of national marine sanctuaries designated by the Secretary in accordance with this chapter,&quot; so the Secretary of Commerce, via the Office of National Marine Sanctuaries within NOAA, <a href="https://www.federalregister.gov/documents/2023/01/19/2023-00861/proposed-lake-ontario-national-marine-sanctuary-notice-of-proposed-rulemaking" rel="noreferrer">proposes</a> to create the Lake Ontario National Marine Sanctuary.</p>
</li>
</ul>

<p>This derives from <a href="https://constitutioncenter.org/the-constitution/articles/article-ii" rel="noreferrer">art. II of the constitution</a></p>
<blockquote>
<p>The executive Power shall be vested in a President of the United
States of America</p>
<p>...</p>
<p>he shall take Care that the Laws be faithfully executed</p>
</blockquote>
<p>Congress cannot legally pass a law handing over their power to the executive branch – this is the <a href="https://www.law.cornell.edu/wex/nondelegation_doctrine" rel="noreferrer">non-delegation doctrine</a>. However, Congress routinely passes law which are vague as to implementation, in which case the executive branch has to try to figure out what exactly is allowed / prohibited by the law. One guiding principle in that area is known as <a href="https://www.law.cornell.edu/wex/chevron_deference" rel="noreferrer">&quot;Chevron deference&quot;</a>, the essence of which is that
when the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s action was based on a permissible construction of the statute. The main statutory restriction on federal regulations is the <a href="https://en.wikipedia.org/wiki/Administrative_Procedure_Act_(United_States)" rel="noreferrer">Administrative Procedures Act</a>, which say something about <em>how</em> the executive branch can issue regulations.</p>

<p>Many statutes, especially in technical areas like environmental law, FCC regulations, and SEC regulations, expressly delegate to agencies the authority to adopt regulations. This is a delegated quasi-legislative role.</p>
<p>For example, the EPA is charged with deciding how much of different kinds of pollutants is dangerous.</p>
<p>But, any agency, even in the absence of express statutory authorization may adopt regulations regarding the meaning of the statutes it is charged with enforcing and other matters not contrary to the statute. This is akin to any organized policy for enforcing a law.</p>
