I’m sometimes asked by family and friends who follow politics, “If Congress makes the laws, then how is it that government agencies are able to also make laws?” It’s a great question, and one that deserves to be clarified. The fact is agencies do not create laws; they create regulations. “But Kurt, the regulations have the force of law. What’s the difference?” The fact is that these agencies are laws. Here is how the process works.
When Congress decides they need an agency to manage a particular issue in society, they can create a law that creates the agency. Because the law creates an entity, it’s called an “Organic Statute.” Originally, there was very little control over the scope of these agencies. However, with the Supreme Court case of JW Hampton v. United States, it was decided that Article One of the Constitution gives the sole responsibility for making laws, and therefore Congress cannot delegate it’s authority to make laws, so the agencies are relegated to only making policy and rules. This is called the Intelligible Principle. Essentially, the Intelligible Principle is the scope of practice for policies and rules. However, the policy and rules have the force of law, because the agency is, in fact, a law that was created statutorily.
The reason the President of the United States has control over the agencies is because Article Two of the Constitution gives the authority to execute the law to the Executive branch. Therefore, it’s the President’s job to direct the agencies. The way this is done is through the power of Executive Orders. Executive Orders are how the agencies are directed to make policy and rulemaking inside of their scope of practice. Through this process of Executive Order, the President also directs the agencies as to his intent in terms of policy.
This is why it is so important to pay attention to the philosophy and priorities of Presidential candidates. Their intent will come through in the policies and rules of the agencies. Can Congress control this? Yes. If Congress doesn’t agree with what is happening with the agencies, they can put forward bills to change the Intelligible Act of the agency. They can even write a bill to abolish the agency. They can also defund the agency. However, it is more likely they will hold investigations into the agency in question and entangle the agency’s directors so that very little can get done by the agency.
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