What Is Federal Rulemaking? Congress often grants rulemaking authority to federal agencies to implement statutory programs. The regulations issued pursuant to this authority carry the force and effect of law and can have substantial implications for policy implementation. When issuing these regulations, agencies are required to follow a certain set of procedures prescribed in law and executive orders. These procedures collectively comprise the federal rulemaking process. “A valid legislative rule is binding upon all persons, and on the courts, to the same extent as a congressional statute. When Congress delegates rulemaking authority to an agency, and the agency adopts legislative rules, the agency stands in the place of Congress and makes law.” National Latino Media Coalition v. Federal Communications Commission, 816 F.2d 785, 788 (D.C. Cir. 1987). Why Would Congress Delegate Rulemaking Authority? There are a number of reasons why Congress may want to delegate rulemaking authority to agencies. Perhaps most importantly, agencies have a significant amount of expertise and can “fill in” technical details of programs that Congress created in statute. This may be useful for Congress, whose Members are responsible for establishing policy in a wide range of issue areas. The rulemaking process also contains opportunities for public participation and transparency through the public comment process required under the Administrative Procedure Act (APA). Finally, even after delegating rulemaking authority, Congress retains its general legislative power, which gives it the ability to conduct oversight and modify or repeal regulations. As such, delegating authority can enable Congress to focus on “big picture” issues, rather than debating all the technical details required to implement a complex public policy fully.
Date of Report: November 26, 2014
Order Number: IF10003
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