Rulemaking

How Government Agencies Write Law and Make Policy

Cornelius Martin Kerwin, Scott R. Furlong

• Editore: CQ Press
• Anno: 2018
• ISBN:
  9781483352831
• Edizione: 5
• Argomento: Politics & International Relations
• Categoria: Public Affairs & Administration

In this thought-provoking new edition of their highly regarded text, authors Cornelius M. Kerwin and Scott R. Furlong help you grasp the dynamics of today’s American politics by showing you how rulemaking remains an elemental part of our government system. Rulemaking, Fifth Edition, brings concepts to life with the inclusion of new data, a fresh analysis of interest group participation, and new coverage of the Trump administration’s actions from executive orders and key personnel to agencies’ responses to changes. An invaluable and accessible guide to an intensely political process, this much-anticipated edition contains the most current scholarship on a crucial yet understudied subject.

New to the Fifth Edition

• New scholarship from the past five to six years provides you with the latest research and analysis in rulemaking.
• Updated information on the Obama administration and the beginning of the Trump Administration puts rulemaking in context and demonstrates how different administrations use this tool.
• New tables and charts reflect the most recent data available to better illustrate the trends and patterns of rulemaking.

1 The Substance of Rules and the Reasons for Rulemaking

Cornelius M. Kerwin and Scott R. Furlong

We have known for decades that smoking is detrimental to human health and that nicotine, a substance contained in tobacco, is highly addictive. Government actions to combat this threat have employed various means to prevent people, particularly the young, from acquiring the habit in the first place. In fact, the issue of smoking provided the platform for a seminal case study of rulemaking, the topic of this book. Federal and state laws and regulations now prohibit the sale of tobacco products to minors, and labeling requirements make the dangers plain to all consumers. These serial actions that have involved all branches and levels of government have done virtually everything short of outright prohibition to make the consumption of nicotine by smoking as expensive, inconvenient, and unattractive as possible.

But, as in so many areas where private behavior and public interest compel government action, the evolution of technology, economics, and behavior presents new challenges. An alternative to cigarettes and other tobacco products emerged in the form of a new technique that delivers nicotine by inhaling it from an “e-cigarette” or some other form of battery-powered vaporizer. First sold in 2004, these alternatives to smoking became immediately popular and were until recently largely unregulated in the United States. The vaping products take a variety of forms, but a general public health concern about the rapid growth in use of these devices, the long-term health effects of which have not been extensively studied, led the Food and Drug Administration (FDA) to act. In 2016, invoking authorities they found in several acts of Congress, officials at the FDA issued a rule hundreds of pages long placing restrictions on new vaping products entering the market, outlining requirements that retail establishments must meet to sell them, and prohibiting sales to persons under the age of 18.¹ Under consideration for some time, when finally announced, the new rules prompted strong reactions.

Noting the change in technology, the secretary of Health and Human Services stated, “We’ve agreed for many years that nicotine does not belong in the hands of children…. Progress has been made but the context has changed so we need to act.” The action by the FDA was welcomed by some public health groups, including the Campaign for Tobacco-Free Kids. But views and positions on the health effects of vaping and the wisdom and value of the new rule were anything but unanimous.

Referring to the relative safety of vaping compared with smoking, the head of the American Vaping Association was quoted as stating, “This is going to be a grim day in the history of tobacco harm reduction.” Others voiced concerns that the requirements for licensing would be so onerous as to force thousands of small businesses to close and would leave the industry to large tobacco companies already quite active in the market. Critics of the action noted the need for congressional action, ostensibly to blunt the effects of the FDA’s action, and, perhaps not surprisingly, others mentioned that lawsuits to challenge the rule were likely.² The former course of action, an act of Congress, held little promise of success with President Obama and his certain veto awaiting any legislation that eliminated or weakened the regulation. An appeal to the courts, however, was an entirely different matter. As many as five different challenges to the rule were filed in various federal courts, questioning various elements of the FDA’s action. As litigation does, these cases created at least some uncertainty about the fate of the rule when scrutinized from so many angles by a varied group of judges. But as these cases began their crawl through complex judicial proceedings, a most remarkable event changed the political and policy landscapes, altering the calculus for both the opponents and supporters of the vaping rule.

The election of Donald Trump as president of the United States sent seismic shocks across our political and policy systems. With him came an agenda with deregulation as its cornerstone and a vision of a nation with 75 percent fewer regulations burdening the American economy. We will explore in much greater detail how he has pursued that agenda later in the book, but because rulemaking is, in effect, the beating heart of regulation, it is reasonable to expect that the new vaping regulations would be a prime target. Indeed, it appears that Trump’s campaign promises have already had an impact on the vaping rule within the first year of his administration. Almost immediately after President Trump’s inauguration, an emboldened opposition turned to Congress for help, and the legislative branch responded. The House of Representatives passed a bill that effectively prohibited the FDA from deeming that vaping products were within the agency’s regulatory authority. At this writing, the legislation has not been endorsed by the Senate and sent to the president for his signature. While opponents did not achieve the complete victory they sought, the dynamics set in motion by the election did bring relief. In late July, the Trump-appointed commissioner of the FDA announced a delay in the implementation of key elements of the vaping rule as part of a sweeping new effort to consider a fresh, comprehensive approach to the regulation of nicotine and aspects he acknowledged to be a health crisis attributable to smoking.

This recent example of governmental intervention highlights many of the dimensions of the instrument of law and policy that is the subject of this book. To deal with an important matter involving multiple issues and affecting a large and diverse group of people, a government agency, in this case the FDA, employs rulemaking to establish a new set of standards that both compel and prohibit actions. The rule that emerged from the FDA is based on more fundamental authorities found in statutes Congress enacted but that require agency interpretation in order to apply to products and behavior that were not contemplated by the legislative branch when these laws were adopted. Powerful interests arrayed around the issue of vaping and attempted, with varying degrees of success, to influence the rule that was ultimately produced. Winners and losers emerged, and the latter promised to use whatever means available to approach other branches or offices of government to repair the damage they believed was incorrectly or unnecessarily imposed on them.

The opponents were good to their word and approached the Congress. Congress took action but as yet has not completed it. The president, by appointing a new head of the FDA whose approach to policy issues presumably reflects the priorities of the administration, took action that effectively suspends key elements of the regulation with the promise of a new, wider approach that may be friendlier to the vaping industry. The irony here is that the new commissioner seeks to address the possible shortcomings in the existing rule with—you guessed it—yet another rule.

In short, the vaping rule, as it has come to be known, is both a microcosm of our current political and policy systems and one among thousands of examples of the degree to which we as a democratic society have come to rely on rulemaking as the crucible for the making of law and policy.

Throughout our history, in crisis and in the normal course of the public’s business, Congress deferred to the expertise, management, and administrative capabilities of an agency to carry out what they, as elected representatives, perceived to be the will of the people.

Rulemaking has been used in this case, and countless others, because as an instrument of government it is unmatched in its potential for speed, specificity, quality, and legitimacy. Rulemaking is a ubiquitous presence in virtually all government programs. For a variety of reasons, Congress is unable or unwilling to write and the president to sign laws specific enough to be implemented by government agencies and complied with by private citizens. The crucial intermediate process of rulemaking stands between the enactment of a law by Congress and the president and the realization of the goals both Congress and the people it represents seek to achieve by that law. Increasingly, rulemaking defines the substance of public programs. It determines, to a very large extent, the specific legal obligations we bear as a society. Rulemaking gives precise form to the benefits we enjoy under a wide range of statutes. In the process, it fixes the actual costs we incur in meeting the ambitious objectives of our many public programs.

Rulemaking is important for many reasons. The best place to begin a discussion of those reasons is with a definition of rulemaking and an explanation of why it is crucial to our system of government.

The Definition of Rulemaking

Colin Diver, former president of Reed College and former dean of the University of Pennsylvania Law School, and one of the most thoughtful observers of rules and rulemaking, defined the term rule in a paraphrase of the great jurist Oliver Wendell Holmes: A “rule is the skin of a living policy … it hardens an inchoate normative judgment into the frozen form of words…. Its issuance marks the transformation of policy from the private wish to public expectation…. The framing of a rule is the climactic act of the policy making process.”³ This definition underscores the pivotal role that rules play in our system of government, but more light must be shed on their key characteristics.

More than sixty years after its enactment into law, the Administrative Procedure Act of 1946 (referred to henceforth as the APA) still contains the best definition of rule. Congress wrote the act to bring regularity and predictability to the decision-making processes of government agencies, which by the mid-1940s were having a profound influence on life in this country. Rules and rulemaking were already important parts of the administrative process in 1946. Both, however, required careful definition so that the procedural requirements established in the act would be applied to the types of actions Congress intended to affect.

The APA states, “Rule means the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.”⁴ At first reading this statement does not appear to reveal much. On closer examination, however, it surrenders several elements crucial to understanding contemporary rulemaking. Not the first element mentioned but a good place to start is a single word—agency—because it identifies the source of rules.

The Source of Rules: Agencies

We learn first from this definition that rules do not come from the major institutions created by the Constitution. They are not products of Congress or some other legislature. Rules are by-products of the deliberations and votes of our elected representatives, but they are not themselves legislation. Congress does have its own institutional rules, but they apply only to its members and committees. Under the APA definition, rules do not originate with the president or some other chief executive. As we will see, the actions of the president of the United States and chief executives at the various levels of government have a profound effect on the rulemaking process. These officials employ executive orders and directives in the course of their management responsibilities, but rarely, if ever, do they write rules of the type considered in this book. The importance of rulemaking in policymaking belies the clear intent of the Founders that the legislative power of the national government will be vested in the Congress. Very recent scholarship argues that the long-standing principle that this legislative power cannot be delegated is simply a “fiction.” Reinforcing the earlier analysis of Diver, Professor Kathryn Watts notes, “the premise … prohibiting the delegation of legislative power has little connection to the real world…. Rules create legally binding norms and carry the force of law just as statutes do.”⁵ The implications of this apparent contradiction of what some would argue is the most important principle of governance in the Constitution will be discussed in several sections that follow.

In fact, President Obama received substantial criticism from those who believe he routinely abused the use of such instruments of executive power when he should have sought a legislative solution. However, rarely do chief executives or their direct staff write the types of rules considered in this book.⁶

Various and sundry courts may have reason to consider rules. Their actions may result in rules being changed or eliminated. But judges do not write rules in the first instance either, except, like Congress, to establish procedures for their colleagues and the operation of the courts over which they preside.

Rules are produced by bureaucratic institutions entrusted with the implementation, management, and administration of our law and public policy. Bureaucracies are inferior in status to the constitutional branches of government—Congress, the president, and the judiciary. Yet the authority of these agencies is derived and patterned after and drawn from the three main branches. In one im...