Government 101

[nancylebov]

Is there a difference between what laws and regulations cover, or is it just that laws are made by legislatures and regulations are made by agencies?

My initial impression was that laws punish actions which have caused damage and regulations attempt to prevent somewhat more remote damage [1], but I'm pretty sure there are laws that are more on the prevention side. I'm also pretty sure that regulations can't invoke nearly the level of punishment that laws do.

[1] Allowing that in either case, the damage might very much a matter of point of view, and both laws and regulations can be the result of special interests.

Comments

[chickenfeet2003.livejournal.com]

I can't give a technical answer for the US but I can for Canada/UK/Australia. Laws are passed by the legislature. Laws may contain provisions allowing for the promulgation of regulations, usually by means of an Order in Council. Orders in Council have to be laid before the Legislature and, theoretically, could be opposed but they almost never are. In any case they don't have to be approved, just not opposed.

[fidelioscabinet.livejournal.com]

Let me get my gummint employee hat out of my desk drawer.

A law is passed (in the US, anyway--laws are created by different mechanisms in different governmental systems) by Congress and is signed into effect by the President (ideally, under the Constitution, unless it's vetoed).

A regulation is a rule drawn up by a specific governmental agency in order to implement a law.

To take an old example, look at the Homestead Act, which was legislation designed to set up a system for distributing government lands. The Department of the Interior (IIRC) was responsible for carrying out the provisions of the Homestead Act, and would have drawn up regulations explaining how the homesteading system would work in actual practice. The regulations might change over time, and (under law) could be made to change by passing a new law which would amend the original law. The regulations cannot supersede the laws, and if it helps, there's distinct hierarchy:
agency policy
which is governed by the regulations
which are governed by the specific law or laws
which is/are governed by the US Constitution

Regulations cannot be drawn up and randomly put into effect; they are required by law to be published in the Federal Register for comment by any interested parties for a minimum of thirty days--that new HHS business about considering such forms of birth control as pills and hormone patches as forms of abortion was brought to people's attention when they had to publish notice of the change in the Register.

If there's enough fuss and furore, the planned regulation/change in regulation may be withdrawn for revision instead of being implemented.

The notion that laws are there to punish actions which have caused damage does not even begin to cover the things that laws do in this country. It may have applied at the time Blackstone wrote his Commentaries, but it does not do so now. In addition to such things as the Homestead Act, look at the legislation which introduced the interstate highways; an international treaty which has ben confirmed by the Senate has the effect of law, which is why we are in such hot water over Guantanamo and other excesses--the Geneva Conventions have been confirmed by the US Senate and are as much the law of the land as anything else Congresses passes and the President signs.

WRT punishment, regulations cannot produce punishment in excess of that which is mandated by the specific law that applies to the action in question, and crime and punishment are only a part of the things laws and regulations address in this (and other) countries.

[nancylebov.livejournal.com]

Thanks. That covers a bunch I didn't know at all (that regulations exist to implement laws) or that I vaguely knew but hadn't put together.

Are there ways of challenging regulations after they've been put into effect?

Can courts challenge regulations directly, or only the laws which regulations are intended to implement?

[romsfuulynn.livejournal.com]

Courts don't challenge regulations. Someone (person or entity) challenges the regulation.

There are some exceptions to the "regulations cannot be drawn up and randomly put into effect" but for walking around purposes that's correct.

The "statutes" (laws) of the Government are found in the US Code.

http://www.gpoaccess.gov/USCODE/index.html

Individual laws, as they get passed get incorported into the appropriate portion(s) of the US Code. (e.g. the Freedom of Information Act, or the Federal Records Act or the Patriot Act or whatever.) In paper it is about four shelf feet.

To the extent that the laws require regulatory agencies to do things, regulations are the executive branch's (IRS, EPA, etc, etc, etc) attempt to figure out what the heck Congress had in mind when it wrote that law.

Those compiled regulations are published annually in the Code of Federal regulations. It is about 40 or 50 shelf feet of volumes in paper.
http://www.gpoaccess.gov/cfr/index.html

Every day the government publishes the Federal Register, which includes (among other things) all the proposed and final rules (regulations) for the day.

http://www.access.gpo.gov/su_docs/aces/fr-cont.html is always the current day's issue.

One interesting one to me is about exempting from the laws against copy protection circumvention work done for handicapped accessibility.
http://edocket.access.gpo.gov/2008/E8-23576.htm

[romsfuulynn.livejournal.com]

You asked about how you get regulations undone - it happens by someone going to court

in this one Sierra Club thought Ohio EPA was doing such a bad job that US EPA should stop having Ohio EPA carry out certain functions and get money for doing so from the federal government.

http://www.epa.gov/EPA-AIR/2003/February/Day-24/a4259.htm

[nancylebov.livejournal.com]

Ok, so the process is that a regulation can be changed if a person challenges it (as part of a lawsuit?) and a court agrees that the regulation is illegal? unconstitutional? fails to implement the law?.

all of the above

[romsfuulynn.livejournal.com]

I think I'm getting this right, but you may want to go to the gpoaccess.gov and the regulations.gov websites and just wander around some.

Various possibilities.

1. The underlying law is bad (unconstitutional) and therefore the regulations that are based on it are thrown out.

2. The regulations written by the federal agency don't accurately reflect the law, and the intent of congress (not just the law as it got written - there are things called "legislative histories" that get consulted by judges (the third leg of the stool - the legs being executive/legislative/judicial) to figure out what the law was intended to do.

Or laws/regs may contradict other laws and regs and often do and the courts sort that out.

Or regs get challenged because they are implemented selectively - or because a regulation may have been sitting there peacefully for 20 years and suddenly an agency may look at it and go "this is a way we can go after these bad guys" for whatever that agency's definition of bad guys is.

Or there are contradictory decisions in the different federal court jurisdictions. Precedent is a big part of law.

This is a very good reference on the first part of the process - the law part
http://thomas.loc.gov/home/lawsmade.toc.html

But then from there
http://www.gpoaccess.gov/

the US Government Manual outlines what particular agencies do.

But the courts are the third part of the checks and balances - Legislative branch (Congress) makes laws - the executive branch, headed by the President and Cabinet, but supported by a huge standing apparatus of the Federal Civil Service who are around long term carry them out, and the courts slap them both around and figure out how it fits together.