In the TOS blog, Michael A. LaFerrera has a post titled, “Where does Valid Law End and Regulation Begin?” It is a relevant question with an easy answer, but the post’s analysis totally misses the mark in my opinion.
The post’s conclusion is that government regulation per se is inherently illegitimate; I find that conclusion to be untenable. To illustrate, let me point to a couple examples of legitimate regulations:
- There is a body of regulations related to the process for filing a patent which establish the procedures for executing relevant statutes.
- There is a body of regulations related to executing multiple statutes covering the administration of government contracting.
- Some regulations protect an individual’s due process rights by establishing procedures to challenge executive decisions.
Perhaps there is some context that should be explicit in LaFerrera’s post; however, the title of the post makes its intent seem to be a broad evaluation of government regulation.
Looking at problems that are actually happening with government regulations in reality, the following broad criticisms of federal regulation could be made correctly:
- Congress by statute delegates too much regulatory discretion to the executive branch,
- Congress fails to exercise sufficient oversight, including making statutory reforms, related to executive rule making and implementation,
- Congress fails during statutory reauthorization to make sufficient investigation of and corrections to regulatory excesses,
- the Supreme Court, through its decision in Chevron v. Natural Resources Defense Council (1984), defaulted on its responsibility to extend individuals judicial protection from executive abuses by regulation and bureaucracy, and
- statutory waiver discretion granted to the executive by Congress moves us from the rule of law toward the rule of men.
Based upon the specific examples cited in LaFerrera’s post, it seems that the issue he is attempting to identify relates to government regulations implementing non-objective laws; if so, the non-objective laws are to blame and not the regulations. This error misses the cause while focusing on an effect, which obstructs from actually solving the problem.