Rulemaking and the American Constitution

Abstract

A Constitution that strongly separates legislative from executive activity makes it difficult to reconcile executive adoption of regulations (that is, departmentally adopted texts resembling statutes and having the force of law, if valid) with the proposition that the President is not ‘to be a lawmaker’. Such activity is, of course, an essential of government in the era of the regulatory state. United States courts readily accept the delegation to responsible agencies of authority to engage in it, what we call ‘rulemaking’, so long as it occurs in a framework that permits them to assess the legality of any particular exercise. As is well known, rulemaking employs distinct public procedures, and judicial review of the validity of the resulting regulations is considerably more intense than would occur of the validity of legislation. The working assumption, however, is that rulemaking decisions are made by particular agencies responsible for the precise matters at issue, on the basis of what they expertly know and of the information and views they have received in the course of the public process. In recent decades, presidential oversight of this process has steadily intensified. Former President Bush strongly claimed a right not just of oversight, but of decision as the single politically elected official of our executive branch. The result has been both to concentrate considerable power in one place, in tension with American ‘checks and balances’ ideas, and to render rulemaking an increasingly political rather than ‘expert’ activity. The paper explores these trends and conflicts.