My reaction to this article at the Washington Examiner from Ilya Shapiro about an FDA employee without Constitutional authority issuing regulations is that if the rulemakers and those tasked with enforcing the rules aren’t going to follow the rules we should have far fewer rules.
I think what we’re seeing here are the consequences of negligent management. Unless the appropriate controls are put in place, every clerk makes policy. That’s true in your corner bar and it’s true in the federal government.
Would need to see the particulars here. Almost no CEO or Department head is actually going to write a policy, rule or regulation themselves. I would expect someone else to write it, but it would be reviewed by the CEO/Department head. So, if this is what is being done, this is essentially just a harassment suit nitpicking over nonsense. If however, the person in charge never sees what is being issued, then it may have some merit.
Steve
It happens all of the time, steve. Some relatively low level staffer makes a judgment and it becomes policy. Anybody who’s ever dealt with Illinois’s Central Management Services has encountered it.
It’s not just at that level. Every time a cop lets off someone he caught speeding, he’s making policy. When a judge decides to let someone off with a warning, she’s making policy.
The context here is that executive agencies are passing laws, and the Constitution places lawmaking power in Congress. The Constitutional questions regarding legislative delegation were resolved by legislation governing the rulemaking process (mainly the Administrative Procedure Act) and heightened judicial review with respect to almost all aspects of rulemaking. Essentially, the three-ring circus has been reformed to accommodate the administrative state, but the accommodation is uneasy and always subject to challenge, particularly on grounds of the extent of legislative delegation of rulemaking power. No agency has inherrent rulemaking authority.
So, what I take Shapiro to be arguing is that the delegation to the Secretary is a limitation on the rulemaking authority because this limitation provides the legislation a check on administrative power through the appointments clause and through oversight. To the extent, the Secretary delegated the responsibility to a lesser officer, the system of checks and balances fails.
I think Steve’s point would prevail if the Secretary retained final say, even if it’s just the final signature. But Shapiro says the subordinate signed-off on the rule and links to ten pages of authority “redelegations.” This all seems pretty extreme to me. Shapiro could be right on this, but the agency seems to not think redelegations are a problem.
Further clarification: Shapiro is complaining about redelegations to people who are not Officers of the U.S. And some of the redelegations may be from entirely internal matters. Rulemaking is different because it imposes legal requirements (legislation) on people outside of the agency.
Similar policymaking happens at much smaller levels all the time. In my time in the federal service, I came across enforced “policies” that directly contradicted codified regulations pretty frequently.
“Some relatively low level staffer makes a judgment and it becomes policy.”
Meh. There is policy and then there is Policy. If some low level person decides you need to pay your licensing fees on Tuesdays instead of Wednesdays, can’t say I care much. If the low level person is deciding the detail of a $50 billion budget, then I have issues with it.
Steve