Statutes Vs Rules

When agencies engage in rule making what they do looks very much like what congress does when it passes a law. The rule has the same legal effect as a statute. It’s enforceable in court, it can create criminal penalties, civil penalties. It can preempt State law, all of the things that a statute can do.

There’s a very large difference in the process by which rules are produced. Congress produces laws. Article 1, section 7 specifies a process by which those laws are made. That process is very cumbersome and is designed to bring into play at least 3 bodies; the House, Senate and President with a lot of veto points are built into that process.

Agency rule making loses those constitutional veto points. For an agency to promulgate a rule all you need is for a majority vote of the leaders. There are certain procedures agencies must follow that congress does not.

Administrative agencies engaged in rule making must, by statute, must jump through a bunch of hoops. They do have to provide advanced notice of what they are doing and give people an opportunity to explain why what they are doing is a bad idea. Once they make the rule they must explain what they did in a long, detailed explanation that will be looked at aby a court to make sure they haven’t skipped any steps in their reasoning. Once congress enacts a law it doesn’t have to explain anything.