Rulemaking Pursuing a Policy Agenda
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Rulemaking Pursuing
a Policy Agenda
RICHARD W. WATERMAN
Abstract
Rulemaking is a difficult process that involves interpreting legislation, often vaguely
written, by legislators into formal rules of action for bureaucratic implementation.
The process is highly political and often confrontational, with varied interests
attempting to influence the behavior of the bureaucratic experts involved in writing
rules, regulations, and setting standards. The end result is often delay, during which
time the bureaucracy gets the blame. Even under the best of circumstances, however,
rulemaking is a difficult process.
Rulemaking derives its legal rationale from the Administrative Procedure
Act of 1946. According to the act, a “rule means the whole or part of an agency
statement or particular applicability and future effect designed to implement,
interpret, or prescribe law or policy.” Key terms in this definition include the
charge to implement, interpret, and proscribe law or policy. The passage of
laws involves a constitutional process involving both houses of Congress and
the president. Once a law is passed, however, the task of turning that law
into a workable policy ready for implementation has just begun. This step
involves decisions about rulemaking that are not specified in the Constitution but rather were defined by Congress when it wrote the Administrative
Procedure Act of 1946. Because rules are not passed by Congress, but by an
administrative agency, they are often highly controversial. Yet, administrative procedures are necessary because Congress does not have the capacity
or the expertise to implement (administer and enforce) the laws it passes.
Rather it leaves that task to the experts, the various agencies that make up the
federal bureaucracy. And importantly, rules have the same legal standing as
laws passed by Congress, although they do not require congressional action.
A first step in the implementation process is to write rules and regulations
that guide the administration and enforcement of the law. Without specific
Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Stephen Kosslyn.
© 2015 John Wiley & Sons, Inc. ISBN 978-1-118-90077-2.
1
2
EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
rules and regulations, implementation could not occur. This is because in
passing legislation, Congress leaves many of the details of the issue at hand
to be determined by the administering regulatory agencies. In addition, laws
can be detailed or vague, but all laws require operating rules before they can
be implemented. Even when Congress attempts to be detailed in providing
instruction to the bureaucracy, agencies often face such a varied and changing
regulatory environment that specific rules must be written and rewritten over
time to reflect changing realities. It is impossible for Congress to anticipate
all of the new technological and environmental factors that may occur years
down the road. Thus, even when detailed legislation is passed, agencies have
considerable discretion to write new rules that will guide the implementation
process.
To write regulations, agencies must interpret the meaning of the law. As
laws are often the result of congressional compromise, legislation can lack
specificity. This creates unique problems for the implementing agency. Not
only it provides that agency with broader discretion to write rules and regulations but also means that the process of rulemaking will be more controversial and elongated. Rulemaking goes through several processes. The law
must be interpreted and preliminary rules written with input from various
bureaucratic officials, including area specialists and lawyers.
Unfortunately, agencies may not have the necessary resources to effectively
implement the law or to write clear rules and regulations. Jones (1975) masterful work on the implementation of the Clean Air Act demonstrates that
while Congress delegated the task of setting standards to the Administrator of the Environmental Protection Agency, the EPA lacked sufficient staff
resources to determine specifically how to implement the law. Faced with
legislative ambiguity, dueling political coalitions, some in favor of stricter
regulation, while others were for more permissive standards, and faced with
the need to reach out to 50 states that would also implement the law, the
Clean Air Act’s implementation was delayed. The writing of rules became a
game of political football, with standards shifting from strict to permissive
with each iteration of the writing of new rules. While it is easy to criticize
EPA officials for their failure to write clear rules, the entire regulatory process
(from legislation through rulemaking to actual implementation) ensured that
implementation of the law would be a highly controversial process.
Furthermore, crafting a general standard in a law into a specific rule is not
an easy process. Let us look at environmental regulation, for instance. It is not
feasible to remove all particulates from the air or water—the cost and technological challenges are generally prohibitive. Therefore, for example, agency
personnel writing rules on water pollution have to decide a standard that
both protects the public and is both economically and technologically feasible. This means studying the issue to determine the relative threat of different
Rulemaking Pursuing a Policy Agenda
3
levels of a particulate versus the possible benefits to public health. Developing standards with an acceptable level of a particular pollutant can be and
often is highly controversial, with some environmental groups arguing for
zero tolerance, while the industries that are affected by the rule argue that
strict rules are too burdensome. Meanwhile, disagreements in the scientific
and legal communities over acceptable levels of pollution can be contentious,
as well. Hence, at an agency such as the Environmental Protection Agency
(EPA), rulemaking is often a highly argumentative process from the start,
even when Congress provides detailed legislation.
Once a rule is written, which can take a number of years, the rule is then
promulgated in the Federal Register and an opportunity is given for a hearing
or comment period at which various interests can challenge the validity of
the law. This period is often 90 days, allowing those who want to challenge
the rule an opportunity to do so in writing or at a formal hearing. During
this period, some participants will argue that the rule is too strict, while others will call for more general rules or even no rules at all. Rules may then and
often are challenged in court, which can involve further delays in the implementation of the rule. During this period, the actual language of rules may be
negotiated and changed to satisfy existing political and economic realities.
Critics of rulemaking often criticize the process and in particular note that
agencies take years to write rules. Yet, given the fact that legislation is often
vague and does not provide specific instruction to agencies, along with the
technological and scientifically sophisticated knowledge that is involved in
the writing of rules, it is no surprise that the rulemaking process is elongated.
When we add the likelihood of lawsuits and other political challenges to the
mix, it is understandable why it may take a decade or more for rules to be
written before implementation of a law actually commences.
What makes the process even more difficult is that some rules are then
measured against prescribed outcomes. Measuring outcomes is particularly
difficult in many areas of social regulation. Hence, it is difficult to determine if rules and regulations are having the anticipated effect. This is the
case because in certain areas of rulemaking, such as those involving environmental protection for instance, the impact of changes in the law and its
implementation can take decades to determine with any level of accuracy.
Thus, for example, a new rule instituted to protect slow moving underground
water sources may be effective, but it may take two or three decades for the
outcomes data to determine that progress is being made. In the meantime,
opposition to the existing rule, generally from industrial sources that are paying the brunt of the cost of enforcement, is likely to grow and with it political
pressure is ratcheted up against the implementing agency. As new presidential administrations emerge, and as the composition of Congress changes
from one political party control to another over time, agencies therefore face
4
EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
considerable pressure to modify or eliminate many of what are considered
their most burdensome rules and regulations. Without reliable outcomes data
to demonstrate that the rules are effective, agencies are at a distinct disadvantage in demonstrating the benefits of many existing rules.
Along with political actors, various political interests have incentives to
manipulate rulemaking in favor of their industry. Rulemaking is not value
neutral. There are winners and losers in this process. Some industries may
benefit by stricter regulation, while others may pay a higher price, thus
making their products less viable in the market place. Rulemaking therefore
occurs within a political framework where various industrial participants
place demands on agency personnel to write regulations that will benefit
their industry. For example, at the beginning of the twentieth century,
major distributors of beef products such as Armor favored stricter laws
and regulations that would certify that their products were safe. The reason
why they needed this government recognition was that other firms were
selling meat products that were not safe, thus threatening Armor’s market.
The Food and Drug Administration (FDA) was created to perform this
task. As this example demonstrates, rules do not always adversely affect all
businesses. Similarly, newly constructed electrical utility plants may push
for stricter regulation to force out energy competitors with older equipment.
Again, rulemaking occurs in a highly contentious political environment and
regulators must decide between what is in the public interest, a term often
specifically stated in regulatory statutes but not well defined, and what
impact rules and regulations will have on existing and emerging businesses.
This is particularly important in the field of newly evolving technology,
where innovation occurs at such a rapid pace that rules can be out of date
within a short period of time and can actually impair innovation.
Kerwin (1994, p. 6) provides an example of the inherent difficulties
involved in interpreting a law into a viable rule. Kerwin notes, in passing
the Occupational Safety and Health Act Congress required the newly
formed Occupational Safety and Health Administration (OSHA) “to assure
so far as possible every working man and woman in the Nation safe and
healthy working conditions.” Yet the legislation did not clearly define such
key terminology as “safe and healthy working conditions” or “so far as
possible.” Yet the law could not be implemented until such terminology was
transformed from legal jargon into concrete rules that allowed for faithful
implementation in “the public interest.” OSHA therefore was tasked with
turning general and ambiguous legislation into specific rules for governing.
What for example was meant by “so far as possible”? Such legal terminology
provides an agency with a great deal of discretion, and it also invites
lengthy legal challenges. OSHA personnel also had to turn “safe and healthy
working conditions” into tangible language. For instance, how many exit
Rulemaking Pursuing a Policy Agenda
5
doors are required in case of a fire? What sorts of restrictions are placed on
the construction of equipment used in labor such as ladders for construction
workers? The settings involved were diverse, involving most types of labor,
from those working in dangerous jobs to office workers. And the standards
had to apply “as far as possible to every working man and woman in the
Nation.” The bold sweep of the legislation therefore meant that virtually
all forms of labor would be incorporated under the laws provisions, guaranteeing that thousands of rules would be required to cover a multitude of
different settings. Each would require vetting within the agency, a public
hearing called the comment period, and many would encounter legal
challenges that could be the subject of deliberation for decades. Hence,
Congress delegated a vital, yet almost impossible task to OSHA.
As noted, the specific language used in formulating a rule can have significant economic consequences for a wide variety of industries and companies. They in turn attempt to influence the rulemaking process so that
rules are written that favor their products. Sometimes, these challenges can
be comical. For instance, it took decades for federal regulators to determine
the specific definition of peanut butter: that is, what percentage of peanuts
was required before a product could be labeled as peanut butter. Some firms
wanted the standard to be lower so that they could market a product that contained a lower percentage of peanuts. This would lower the cost of the product, with the possibility of increased profits. On the other hand, the public
would be purchasing a product called peanut butter without a high percentage of peanuts. The result was decades of legal wrangling. Similarly, there is
a famous case involving the now defunct Interstate Commerce Commission
(ICC) involving the definition of what constitutes a chicken. According to the
Motor Carrier Act of 1935 and later legislative enactments, certain products
were exempt from ICC regulation, mostly notably perishable items. Stock,
such as chickens, was considered a perishable item. But what if the chicken
was dead? Was it still a chicken? What if the chicken was dead, but its feathers had been plucked? Was it a chicken? Was refuse from chickens a chicken
or was it a separate product requiring ICC regulation? The ICC decided these
cases in a series of administrative proceedings. While the ICC finally determined the definition of a chicken, the agency was pilloried in the press and
rulemaking was delayed for decades.
The peanut butter and chicken cases were decided in dozens of cases
considered by administrative courts, which often adjudicate the application
and enforcement of rules and regulations. Meanwhile, for a considerable
period of time, producers were able to avoid stricter regulation. This resulted
in increased short-term profits for a number of industries. As these cases
demonstrate, the burden of writing rules and regulations is a highly complex
process that evolves over decades.
6
EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
Changing circumstances also influence how rules are written. For example,
as Kerwin (p. 5) writes, laws “administered by the Federal Trade Commission” seek “to eliminate proper restraints on competition.” Originally, these
laws were designed to deal with “robber barons and the trusts.” Today,
however, the same laws apply to a variety of newly emerging technologies.
Hence, the FTC must write new rules that apply existing laws to the
constantly changing realities of a technologically developing society.
Because the implementation of rules has costs, which are primarily born by
the private sector, the writing of rules has become politically controversial.
Gerald Ford and Jimmy Carter issued executive orders governing the costs
of rules and regulations. Ronald Reagan then signed several executive orders
that limited rulemaking if the cost of a new rule or regulation exceeded a certain dollar value. Any such rule was then subject to review by the Office of
Management and Budget (OMB) and its Office of Information and Regulatory Affairs (OIRA) and could be revoked. Similarly, the Reagan administration instituted a clearance procedure for administrative rules and regulations. This meant that all new rules and regulations would be reported to
OMB and OIRA before a rule could be officially promulgated. This provided
the Reagan administration with advance warning of all incoming rules and
regulations, thus allowing the administration to block any new rules with
which it disagreed. These mostly involved rules that would adversely affect
business by placing additional costs on business production. Most affected
were rules written by such social regulatory agencies as the Environmental
Protections Agency and the Occupational Safety and Health Administration.
Presidents since Reagan have kept a careful watch on the cost and scope of
rules, often trumpeting a reduction in rules as evidence of their administration’s political success, without reference to the value of these regulations in
terms of protecting the public from Ecoli, air and water pollution, and other
threats to public health and safety.
Despite the political challenges, there is no alternative to continued rulemaking. It simply is impossible for Congress to pass detailed legislation that
considers every single issue that the nation faces or will face in the future. The
federal bureaucracy is best equipped to meet those challenges. Yet, it is clear
that rulemaking will continue to be as much a political and economic process
as it is a scientific or rational process. Rulemaking often necessarily involves
tough choices, economic winners and losers, and extended political and legal
controversy. For these reasons, the rules that bureaucracy’s write will continue to engender discussion and often-fierce political debate. Examining the
nexus between the courts and rulemaking is an area that should provide fertile ground for future research. In addition, there is a need for more research
on the legal and administrative hurdles to effective rulemaking.
Rulemaking Pursuing a Policy Agenda
7
REFERENCES
Jones, C. O. (1975). Clean air: The policies and politics of pollution control. Pittsburgh, PA:
University of Pittsburgh Press.
Kerwin, C. M. (1994). Rulemaking: How government agencies write law and make policy.
Washington, DC: Congressional Quarterly.
RICHARD W. WATERMAN SHORT BIOGRAPHY
Dr. Richard W. Waterman is a Professor of Political Science at the University of Kentucky. He is the author of 11 books, including work on the politics
of the bureaucracy and the presidency. He has published in journals such as
the American Political Science Review, the American Journal of Political Science,
the Journal of Politics, Political Research Quarterly, the Journal of Public Administration Research and Theory, and the Journal of Policy and Management. He has
served as the President of the Southwest Political Science Association, as
departmental chair, and is a now contented lifelong Boston Red Sox fan.
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Constitutionalism (Political Science), Keith E. Whittington
-
Rulemaking Pursuing
a Policy Agenda
RICHARD W. WATERMAN
Abstract
Rulemaking is a difficult process that involves interpreting legislation, often vaguely
written, by legislators into formal rules of action for bureaucratic implementation.
The process is highly political and often confrontational, with varied interests
attempting to influence the behavior of the bureaucratic experts involved in writing
rules, regulations, and setting standards. The end result is often delay, during which
time the bureaucracy gets the blame. Even under the best of circumstances, however,
rulemaking is a difficult process.
Rulemaking derives its legal rationale from the Administrative Procedure
Act of 1946. According to the act, a “rule means the whole or part of an agency
statement or particular applicability and future effect designed to implement,
interpret, or prescribe law or policy.” Key terms in this definition include the
charge to implement, interpret, and proscribe law or policy. The passage of
laws involves a constitutional process involving both houses of Congress and
the president. Once a law is passed, however, the task of turning that law
into a workable policy ready for implementation has just begun. This step
involves decisions about rulemaking that are not specified in the Constitution but rather were defined by Congress when it wrote the Administrative
Procedure Act of 1946. Because rules are not passed by Congress, but by an
administrative agency, they are often highly controversial. Yet, administrative procedures are necessary because Congress does not have the capacity
or the expertise to implement (administer and enforce) the laws it passes.
Rather it leaves that task to the experts, the various agencies that make up the
federal bureaucracy. And importantly, rules have the same legal standing as
laws passed by Congress, although they do not require congressional action.
A first step in the implementation process is to write rules and regulations
that guide the administration and enforcement of the law. Without specific
Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Stephen Kosslyn.
© 2015 John Wiley & Sons, Inc. ISBN 978-1-118-90077-2.
1
2
EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
rules and regulations, implementation could not occur. This is because in
passing legislation, Congress leaves many of the details of the issue at hand
to be determined by the administering regulatory agencies. In addition, laws
can be detailed or vague, but all laws require operating rules before they can
be implemented. Even when Congress attempts to be detailed in providing
instruction to the bureaucracy, agencies often face such a varied and changing
regulatory environment that specific rules must be written and rewritten over
time to reflect changing realities. It is impossible for Congress to anticipate
all of the new technological and environmental factors that may occur years
down the road. Thus, even when detailed legislation is passed, agencies have
considerable discretion to write new rules that will guide the implementation
process.
To write regulations, agencies must interpret the meaning of the law. As
laws are often the result of congressional compromise, legislation can lack
specificity. This creates unique problems for the implementing agency. Not
only it provides that agency with broader discretion to write rules and regulations but also means that the process of rulemaking will be more controversial and elongated. Rulemaking goes through several processes. The law
must be interpreted and preliminary rules written with input from various
bureaucratic officials, including area specialists and lawyers.
Unfortunately, agencies may not have the necessary resources to effectively
implement the law or to write clear rules and regulations. Jones (1975) masterful work on the implementation of the Clean Air Act demonstrates that
while Congress delegated the task of setting standards to the Administrator of the Environmental Protection Agency, the EPA lacked sufficient staff
resources to determine specifically how to implement the law. Faced with
legislative ambiguity, dueling political coalitions, some in favor of stricter
regulation, while others were for more permissive standards, and faced with
the need to reach out to 50 states that would also implement the law, the
Clean Air Act’s implementation was delayed. The writing of rules became a
game of political football, with standards shifting from strict to permissive
with each iteration of the writing of new rules. While it is easy to criticize
EPA officials for their failure to write clear rules, the entire regulatory process
(from legislation through rulemaking to actual implementation) ensured that
implementation of the law would be a highly controversial process.
Furthermore, crafting a general standard in a law into a specific rule is not
an easy process. Let us look at environmental regulation, for instance. It is not
feasible to remove all particulates from the air or water—the cost and technological challenges are generally prohibitive. Therefore, for example, agency
personnel writing rules on water pollution have to decide a standard that
both protects the public and is both economically and technologically feasible. This means studying the issue to determine the relative threat of different
Rulemaking Pursuing a Policy Agenda
3
levels of a particulate versus the possible benefits to public health. Developing standards with an acceptable level of a particular pollutant can be and
often is highly controversial, with some environmental groups arguing for
zero tolerance, while the industries that are affected by the rule argue that
strict rules are too burdensome. Meanwhile, disagreements in the scientific
and legal communities over acceptable levels of pollution can be contentious,
as well. Hence, at an agency such as the Environmental Protection Agency
(EPA), rulemaking is often a highly argumentative process from the start,
even when Congress provides detailed legislation.
Once a rule is written, which can take a number of years, the rule is then
promulgated in the Federal Register and an opportunity is given for a hearing
or comment period at which various interests can challenge the validity of
the law. This period is often 90 days, allowing those who want to challenge
the rule an opportunity to do so in writing or at a formal hearing. During
this period, some participants will argue that the rule is too strict, while others will call for more general rules or even no rules at all. Rules may then and
often are challenged in court, which can involve further delays in the implementation of the rule. During this period, the actual language of rules may be
negotiated and changed to satisfy existing political and economic realities.
Critics of rulemaking often criticize the process and in particular note that
agencies take years to write rules. Yet, given the fact that legislation is often
vague and does not provide specific instruction to agencies, along with the
technological and scientifically sophisticated knowledge that is involved in
the writing of rules, it is no surprise that the rulemaking process is elongated.
When we add the likelihood of lawsuits and other political challenges to the
mix, it is understandable why it may take a decade or more for rules to be
written before implementation of a law actually commences.
What makes the process even more difficult is that some rules are then
measured against prescribed outcomes. Measuring outcomes is particularly
difficult in many areas of social regulation. Hence, it is difficult to determine if rules and regulations are having the anticipated effect. This is the
case because in certain areas of rulemaking, such as those involving environmental protection for instance, the impact of changes in the law and its
implementation can take decades to determine with any level of accuracy.
Thus, for example, a new rule instituted to protect slow moving underground
water sources may be effective, but it may take two or three decades for the
outcomes data to determine that progress is being made. In the meantime,
opposition to the existing rule, generally from industrial sources that are paying the brunt of the cost of enforcement, is likely to grow and with it political
pressure is ratcheted up against the implementing agency. As new presidential administrations emerge, and as the composition of Congress changes
from one political party control to another over time, agencies therefore face
4
EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
considerable pressure to modify or eliminate many of what are considered
their most burdensome rules and regulations. Without reliable outcomes data
to demonstrate that the rules are effective, agencies are at a distinct disadvantage in demonstrating the benefits of many existing rules.
Along with political actors, various political interests have incentives to
manipulate rulemaking in favor of their industry. Rulemaking is not value
neutral. There are winners and losers in this process. Some industries may
benefit by stricter regulation, while others may pay a higher price, thus
making their products less viable in the market place. Rulemaking therefore
occurs within a political framework where various industrial participants
place demands on agency personnel to write regulations that will benefit
their industry. For example, at the beginning of the twentieth century,
major distributors of beef products such as Armor favored stricter laws
and regulations that would certify that their products were safe. The reason
why they needed this government recognition was that other firms were
selling meat products that were not safe, thus threatening Armor’s market.
The Food and Drug Administration (FDA) was created to perform this
task. As this example demonstrates, rules do not always adversely affect all
businesses. Similarly, newly constructed electrical utility plants may push
for stricter regulation to force out energy competitors with older equipment.
Again, rulemaking occurs in a highly contentious political environment and
regulators must decide between what is in the public interest, a term often
specifically stated in regulatory statutes but not well defined, and what
impact rules and regulations will have on existing and emerging businesses.
This is particularly important in the field of newly evolving technology,
where innovation occurs at such a rapid pace that rules can be out of date
within a short period of time and can actually impair innovation.
Kerwin (1994, p. 6) provides an example of the inherent difficulties
involved in interpreting a law into a viable rule. Kerwin notes, in passing
the Occupational Safety and Health Act Congress required the newly
formed Occupational Safety and Health Administration (OSHA) “to assure
so far as possible every working man and woman in the Nation safe and
healthy working conditions.” Yet the legislation did not clearly define such
key terminology as “safe and healthy working conditions” or “so far as
possible.” Yet the law could not be implemented until such terminology was
transformed from legal jargon into concrete rules that allowed for faithful
implementation in “the public interest.” OSHA therefore was tasked with
turning general and ambiguous legislation into specific rules for governing.
What for example was meant by “so far as possible”? Such legal terminology
provides an agency with a great deal of discretion, and it also invites
lengthy legal challenges. OSHA personnel also had to turn “safe and healthy
working conditions” into tangible language. For instance, how many exit
Rulemaking Pursuing a Policy Agenda
5
doors are required in case of a fire? What sorts of restrictions are placed on
the construction of equipment used in labor such as ladders for construction
workers? The settings involved were diverse, involving most types of labor,
from those working in dangerous jobs to office workers. And the standards
had to apply “as far as possible to every working man and woman in the
Nation.” The bold sweep of the legislation therefore meant that virtually
all forms of labor would be incorporated under the laws provisions, guaranteeing that thousands of rules would be required to cover a multitude of
different settings. Each would require vetting within the agency, a public
hearing called the comment period, and many would encounter legal
challenges that could be the subject of deliberation for decades. Hence,
Congress delegated a vital, yet almost impossible task to OSHA.
As noted, the specific language used in formulating a rule can have significant economic consequences for a wide variety of industries and companies. They in turn attempt to influence the rulemaking process so that
rules are written that favor their products. Sometimes, these challenges can
be comical. For instance, it took decades for federal regulators to determine
the specific definition of peanut butter: that is, what percentage of peanuts
was required before a product could be labeled as peanut butter. Some firms
wanted the standard to be lower so that they could market a product that contained a lower percentage of peanuts. This would lower the cost of the product, with the possibility of increased profits. On the other hand, the public
would be purchasing a product called peanut butter without a high percentage of peanuts. The result was decades of legal wrangling. Similarly, there is
a famous case involving the now defunct Interstate Commerce Commission
(ICC) involving the definition of what constitutes a chicken. According to the
Motor Carrier Act of 1935 and later legislative enactments, certain products
were exempt from ICC regulation, mostly notably perishable items. Stock,
such as chickens, was considered a perishable item. But what if the chicken
was dead? Was it still a chicken? What if the chicken was dead, but its feathers had been plucked? Was it a chicken? Was refuse from chickens a chicken
or was it a separate product requiring ICC regulation? The ICC decided these
cases in a series of administrative proceedings. While the ICC finally determined the definition of a chicken, the agency was pilloried in the press and
rulemaking was delayed for decades.
The peanut butter and chicken cases were decided in dozens of cases
considered by administrative courts, which often adjudicate the application
and enforcement of rules and regulations. Meanwhile, for a considerable
period of time, producers were able to avoid stricter regulation. This resulted
in increased short-term profits for a number of industries. As these cases
demonstrate, the burden of writing rules and regulations is a highly complex
process that evolves over decades.
6
EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
Changing circumstances also influence how rules are written. For example,
as Kerwin (p. 5) writes, laws “administered by the Federal Trade Commission” seek “to eliminate proper restraints on competition.” Originally, these
laws were designed to deal with “robber barons and the trusts.” Today,
however, the same laws apply to a variety of newly emerging technologies.
Hence, the FTC must write new rules that apply existing laws to the
constantly changing realities of a technologically developing society.
Because the implementation of rules has costs, which are primarily born by
the private sector, the writing of rules has become politically controversial.
Gerald Ford and Jimmy Carter issued executive orders governing the costs
of rules and regulations. Ronald Reagan then signed several executive orders
that limited rulemaking if the cost of a new rule or regulation exceeded a certain dollar value. Any such rule was then subject to review by the Office of
Management and Budget (OMB) and its Office of Information and Regulatory Affairs (OIRA) and could be revoked. Similarly, the Reagan administration instituted a clearance procedure for administrative rules and regulations. This meant that all new rules and regulations would be reported to
OMB and OIRA before a rule could be officially promulgated. This provided
the Reagan administration with advance warning of all incoming rules and
regulations, thus allowing the administration to block any new rules with
which it disagreed. These mostly involved rules that would adversely affect
business by placing additional costs on business production. Most affected
were rules written by such social regulatory agencies as the Environmental
Protections Agency and the Occupational Safety and Health Administration.
Presidents since Reagan have kept a careful watch on the cost and scope of
rules, often trumpeting a reduction in rules as evidence of their administration’s political success, without reference to the value of these regulations in
terms of protecting the public from Ecoli, air and water pollution, and other
threats to public health and safety.
Despite the political challenges, there is no alternative to continued rulemaking. It simply is impossible for Congress to pass detailed legislation that
considers every single issue that the nation faces or will face in the future. The
federal bureaucracy is best equipped to meet those challenges. Yet, it is clear
that rulemaking will continue to be as much a political and economic process
as it is a scientific or rational process. Rulemaking often necessarily involves
tough choices, economic winners and losers, and extended political and legal
controversy. For these reasons, the rules that bureaucracy’s write will continue to engender discussion and often-fierce political debate. Examining the
nexus between the courts and rulemaking is an area that should provide fertile ground for future research. In addition, there is a need for more research
on the legal and administrative hurdles to effective rulemaking.
Rulemaking Pursuing a Policy Agenda
7
REFERENCES
Jones, C. O. (1975). Clean air: The policies and politics of pollution control. Pittsburgh, PA:
University of Pittsburgh Press.
Kerwin, C. M. (1994). Rulemaking: How government agencies write law and make policy.
Washington, DC: Congressional Quarterly.
RICHARD W. WATERMAN SHORT BIOGRAPHY
Dr. Richard W. Waterman is a Professor of Political Science at the University of Kentucky. He is the author of 11 books, including work on the politics
of the bureaucracy and the presidency. He has published in journals such as
the American Political Science Review, the American Journal of Political Science,
the Journal of Politics, Political Research Quarterly, the Journal of Public Administration Research and Theory, and the Journal of Policy and Management. He has
served as the President of the Southwest Political Science Association, as
departmental chair, and is a now contented lifelong Boston Red Sox fan.
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