1.Administrative rules and regulations are passed outside of the democratic method and they carry the same weight of the law in most cases (FDA, EPA etc..) What are the positive and negative...

1.Administrative rules and regulations are passed outside of the democratic method and they carry the same weight of the law in most cases (FDA, EPA etc..) What are the positive and negative implications of the process?

2. What impact does economic standing have on the laws that are passed in the state and federal legislatures? Do you think your representative is more likely to care about your concerns or a lobbying group?

Asked on by mariam15

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lorrainecaplan's profile pic

Lorraine Caplan | College Teacher | (Level 1) Educator Emeritus

Posted on

I would like to add a few points to the first response, on agency rules and regulations.  First, the power of any agency exists only because of its enabling legislation, and that power can be taken away, curbed, or expanded by a legislature. Second, in most instances, regulations are subject to a public comment process and sometimes public hearings.  Proposed rules and regulations must be published well before they become "law," in order for that public comment process to take place.  Third, many of the rules that are created by agencies are about process, not about substantive law, simply means of ensuring an orderly journey through the agency system. Finally, every administrative agency has a lengthy and multi-leveled agency appeals process, one that ultimately can be reviewed by regular courts and appellate courts.  If a rule or regulation is in conflict with a statute or is unconstitutional, the court rules accordingly.  I am not sure that any of this necessarily compensates for the fact that agencies do not create "law" as democratically as legislatures do, but every agency is the creature of some legislature and subject to the review of the public and the courts, which does mean that they cannot act arbitrarily or capriciously in their rule and regulation-making. 

pohnpei397's profile pic

pohnpei397 | College Teacher | (Level 3) Distinguished Educator

Posted on

Question 1:

The main positive implication of the administrative rulemaking process is that it allows experts to write rules.  If administrative agencies could not write rules, Congress would have to write them.  The rules would then be written on the basis of politics, not on the basis of what experts think is best.  This would, presumably cause us to end up with rules that were not as good as they could be. 

A secondary positive implication is that administrative rulemaking allows more rules to be written.  If only Congress were able to write rules, not many rules would be written.  Congress would be too busy (or too politically divided) to write all the rules that need to be written.  The system that we actually have allows many different agencies to write rules, thus allowing more rules to be written.  This is, at least arguably, a positive implication.

The major negative implication of the administrative rulemaking process is that it is somewhat undemocratic.  In a democracy, either the people or their elected representatives are supposed to make the laws.  The elected representatives are answerable to the people and can be removed if they make laws the people do not like.  This is not possible when unelected bureaucrats write rules that have the force of law.  This means that administrative rulemaking is less democratic than the creation of laws through the normal legislative process.

Question 2:

The answer to this is a matter of opinion.  In my view, economic standing has a great deal of impact on the laws that are made.  This does not mean, however, that rich people or lobbying groups can always get their way.  Instead, rich lobbying groups can generally have their way, but can be defeated on issues that are high profile and easy to understand.  For example, imagine that a lobbying group wanted to push through a law on abortion (either for or against).  It would not be able to do so because many people care about the abortion issue and understand it as well as they need to.  On this issue, my representatives would be more likely to care about my ideas (and those of other individuals) than about the ideas of lobbying groups.  By contrast, a lobbying group would have much more of a chance to win on the subject of arcane tax provisions.  When we are talking about the details of the tax code, they are hard to understand and are not things that most people pay a great deal of attention to.  In such cases, my representative would be much more likely to care about the ideas of the lobbying groups than about my opinion.

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