Lesson 4: These Are Their Stories
(Or Laws, Regulations, Executive Orders)
Hello Dear Reader!
Welcome to American Basics with your host, Consuelo (Connie) T. Tution.
So the election has you mad as hell and you won’t take it. You’ve been marching, tweeting, sending money to causes, talking to friends, venting like hell against El Cheetolini, the Hair Fuhrer, you know, this guy:
First, Professor Connie T. Tution would like to apologize for being a bit AWOL. Things have been a bit hectic at Casa de Tution and needed time to regroup and recover. I appreciate your patience.
For the past few weeks you’ve seen you’ve heard the words “law”, “regulation”, and “Executive Order”, thrown about so fast and furiously, that you’ve been forced to grab a pint of ice cream (or perhaps something stronger) as you stared beady eyed at the screen while asking yourself “what the hell are they talking about”?
Sit back and relax, Professor Connie’s got your back! I’ll explain things for you.
All Legislative Powers Herein… (Or What are Laws?)
As stated on Lesson 3, a law is the end process where a proposal (or a bill) is adopted by the two chambers of Congress and signed by the President, or passed if ⅔ of both chambers override the President’s Veto. Laws are permanent and some laws are decades, even, centuries old. For example, the Residence Act, which established Washington, D.C. as the permanent seat of the United States government was adopted in 1790 and is still in effect, is considered the oldest law in effect in the United States. The very first law adopted by Congress, a law with a title of “An Act to Regulate the Time and Manner of Administering Certain Oaths” that just flows smoothly is still partially in effect. I’m glad this law has stood the test of time, but couldn’t Thomas Jefferson give his buddy James Madison some pointers about writing style?
There are only three ways a federal law may be overturned:
- The Courts find that the law violate the United States violates the United States Constitution. The Judiciary Act of 1789, namely Section 13 of the Act, has the honor of being the first ever law to be declared unconstitutional by the Supreme Court of the United States in the case Marbury vs. Madison. If the Courts find that part of or a whole federal law violates the constitution, then the law is not in effect. In a situation where parts of the law are declared unconstitutional, lawmakers write a clause in the bill that states that if part of the law is declared unconstitutional, the rest of the law is still in effect.
- Another law repeals or amends an older law. For example, the Judiciary Act of 1925 amended the Judiciary Act of 1891 (also known as the Evarts Act) by ending the right to automatically appeal every decision to the Supreme Court. The current practice where the Supreme Court decides whether or not to hear an appeal was established under the Evarts Act. Prior to that, Supreme Court justices were overwhelmed as almost every case could end up in front of them. Meanwhile the Food, Drugs, and Cosmetics Act of 1938 repealed the 1906 Pure Food and Drugs Act and substituted it with its own set of requirements.
- The Act has a Sunset Clause. Although not common, certain laws in the United States have a provision where the law expires. That means that if the law is not extended by Congress, it automatically ceases to exist. The USA PATRIOT Act is probably the farthest-reaching current law with a sunset clause. Certain of its surveillance provisions have sunset clauses.
As modern life has become more complicated and specialization is required in most fields, Congressional laws now provide the policy framework and delegates the details to specific agencies. These agencies then draft regulations, which flesh out the law.
Throw the Book at ‘em… (Or What are Regulations?)
If the laws establish the parameters of a policy, the regulations establish the way an agency will enforce the policies enacted under the law. When regulations are adopted, they carry the force of law, and agencies can either use punishments or enticements to enforce regulations.
Regulations arise out of one of the following reasons:
- A law requires the Agency to write regulations to flesh out its provisions. For example to Food, Drugs, and Cosmetics act states that adulterated food or drugs cannot be transported over state lines. The Food and Drug Administration establishes the regulations that determine what is an adulterated food or drug.
- Agency Initiatives. As technology changes, new products are introduced, accidents reveal flaws in current regulations, or the agency takes new initiatives, it may adopt new regulations. For example, the Federal Communications Commission (not the FAA) initially banned the use of cellphones in commercial airplanes fearing that cellphone signals would affect wireless towers on the ground. In 2013, both the FAA announced that airline could allow passengers to expand the use of portable electronic throughout all stages of the flight. The FCC said they would review their own rules on allowing cellphones while in flight.
- Recommendations from Other Agencies or External Groups. The grisliest example of regulations arising from recommendations from other agencies are the ones the FAA regulations adopted after an aircraft accident. The National Transportation Safety Board (NTSB) investigates and provides recommendations to the FAA which then decides whether to adopt them or not.
- Required Reviews and Lawsuits. One of the agencies most commonly sued is the Environmental Protection Agency over environmental issues. Therefore it usually enacts regulations arising over court decisions.
- The general public or companies being regulated may ask the agency that it oversees to change or overturn regulations.
The Administrative Procedures Act of 1946 establishes the process where a regulation is adopted. Once the agency determines a regulation is required, it submits a draft and publishes it in the Federal Register. The agency opens the proposed regulation to comment from the public and interested parties. The usual timeframe for comment is 60 days.
Once the comment and review process is complete, the final rule is adopted. Once the regulation is adopted it carries the force of law and can only be overturned using one of these methods:
- The Congressional Review Act determines that the regulation is unnecessary. If Congress adopts a Joint Resolution overturning a regulation within 60 legislative days (meaning days it is actually in session) a regulation is adopted, this regulation is overturned.
- Congress strips regulatory power from an Agency. What Congress giveth, Congress can taketh away. Agencies derive their regulatory powers out of an act of Congress. Therefore, Congress can remove that ability from an Agency.
- Judicial Review. Like laws, the courts can review and determine that a regulation is beyond the powers delegated to an Agency by law or violates the Constitution. These cases are filed in federal district court and end in the US Court of Appeals for the District of Columbia Circuit (sometimes called the mini Supreme Court because of the types of cases it hears on appeals). A recent case where the courts overturned a regulation was when the DC Circuit Court overturned the 2010 Net Neutrality rules because Internet Service Providers are not “common carriers” under the Federal Communications Act. of 1936 and thus outside the FCC’s jurisdiction.
Critics of regulations argue they seriously constrain small business by creating unnecessary procedures and licenses. Additionally the regulatory agencies cost $55 billion to the taxpayer and arguably stifle innovation. Industry argues that the cost to comply with regulation is estimated between $700 billion-$1 trillion annually. Finally opponents to regulations argue that they contradict each other and that a business ends up breaking a regulation while trying to follow another one.
Supporters counter that the safety and consumer protection far outweigh the costs. In addition, too light a regulatory touch, and situations like the FDA unable to detect salmonella in spinach and other recent food poisoning scares or the 2008 financial meltdown, where a lightly regulated derivatives market ended up in a property market meltdown that led to the most serious financial crisis since the Great Depression end up affecting the lives and/or livelihood of millions of Americans. Finally, supporters argue that opponents whine about the costs, but do not take the benefits into account. Supporters of regulations point to that old adage “An ounce prevention is worth a pound of cure”.
With this Pen… (or What are Executive Orders?)
The President has the power to instruct any or all members of his (and hopefully someday soon her) Administration to take certain actions without consulting Congress. This power was first used by George Washington Himself in 1793 when he declared, amid much controversy, the United States’ neutrality in the war between Revolutionary France and Great Britain, Austria, the Netherlands, Sardinia, and Prussia. Executive Orders are instructions to the Administration. The most famous Executive Order is Abraham Lincoln’s Emancipation Proclamation, where he ordered the Union Army that all slaves in those areas in active rebellion against the United States were to be free. They usually last for the term a President is in power, although a new President can continue enforcing a previous President’s Executive Orders.
As the federal government is the largest single purchaser and the largest single employer in the United States, Executive Orders do carry some force of law. For example, President Obama’s Executive Order requiring that federal contractors pay at least $10.10 an hour to its employees affected huge swaths of the economy. If a company wished to provide a good or service to the Obama Administration, it must show that it pays its workers at least $10.10 an hour or they’re disqualified from the bidding process, costing millions, if not billions of dollars in revenue.
Nonetheless, Executive Orders can be overturned by the courts. The most famous check on Executive Orders was the 1952 Supreme Court decision in Youngstown Sheet and Tube Company vs. Sawyer where it declared President Truman’s Executive Order 10340 which sought to put steel plants under federal control. The Supreme Court found that Executive Orders can only clarify or further the goals of a law, not make law. Since that decision, Presidents have made sure to quote a specific law as the basis for the Executive Order it is issuing. Congress can also invalidate an Executive Order by passing a law specifically overturning an Executive Order, withholding funds that would further those specific policy goals, or actively becoming a party in litigation against the President.
Some of the most sweeping actions have come through Executive Orders. As we mentioned above, the Emancipation Proclamation was an Executive Order. Truman desegregated the United States Armed Forces in 1948 through an Executive Order and Eisenhower ordered desegregation of public schools in 1957 by federalizing the Arkansas National Guard and sending the 101st Airborne Division to Little Rock when the governor of Arkansas refused to integrate schools in his state. President Obama signed an Executive Order deferring any deportation action on undocumented children brought to the United States by their parents.
Modern day critics argue that Executive Orders have become a way for Presidents to bypass Congress and make law. Supporters, especially those working in the Administration point out to Congress and the courts as checks on the President’s powers.
So there you go, Dear Reader, hope we brought you away from the ledge after explaining the difference between a law, a regulation and an Executive Order. Next time we’ll talk about War and Peace, not the novel, but where the powers of the President and Congress lie.
See you next time on American Basics. Remember, knowing is half the battle.
by Rafael C.