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Rulemaking and Public Administration

Rulemaking is a process through which rules are developed and issued. Kerwin and Furlong (2010) define the process by paraphrasing the jurist Oliver Wendell Holmes’ version as the process of the framing of a rule and the climatic act of the policymaking process. It is perceived as a direct consequence of the demands that people make on government. In the United States, this process concerns everything ranging from the air that is breathed and the food that is eaten to vehicles that are driven, roads, and various health and financial issues. For this reason, the rulemaking process impacts the quality of people’s lives. According to Kerwin and Furlong’s book How Government Agencies Write Law and Make Policy (2010), this process of rulemaking has over the past 60 years become the focus of considerable professional and political controversy. Despite its controversial nature, rulemaking is an essential part of the public administration that allows administrative states to gain considerable power, which enables them to have a significant influence on the lives of people.

Apparent Presuppositions Underlying the Chapters

There are a number of presuppositions underlying the first two chapters of Kerwin and Furlong’s book. One example of presuppositions made in Chapter One is that agencies carry out what is perceived to be the will of people. In other words, the process of rulemaking that is accomplished by agencies is a way of fulfilling what people want. Kerwin and Furlong confirm this when they state, “rulemaking is a direct consequence of the demand the American people make on government” (2010). For instance, when rules concerning the safety of the road are made by agencies related to transport, they are fulfilling the will of the people with regard to the desire to feel safe on the road.

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Another significant presupposition that has been made in this chapter is that agencies are equal to the institutions that give them power. The institutions that give agencies power relate to the three branches of government, consisting of the legislature which is represented by the Congress, the executive which is represented by the president, and the judiciary which is represented by the courts. The agencies are perceived equal to these three branches because they can perform the functions of the three branches of government. This has led to another presupposition that agencies that represent the administrative state form the fourth branch of government that is considered headless since it lacks any formal status recognizing it in this capacity.

Continuing with the discussion on presuppositions made in the first chapter of the book written by Kerwin and Furlong (2010) about the process of rulemaking, one should outline another presupposition concerning the situation when agencies are acting in the capacity of the judiciary, which can be perceived as the government issuing an order. Therefore, in this capacity agencies are seen as determining the legal implications of both current and past events and conditions. This is best demonstrated by a case where people seek to challenge an adverse regulatory decision that applies to them, for instance, a denial of their petition or any other benefit that has been provided by a specific government program. Therefore, when agencies respond to the situation and address the issue raised by the given individual, it is as if the government itself is acting in the matter.

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An additional presupposition that has also been made in the first chapter is that acts such as the New Deal Act and the National Industrial Recovery Act (NIRA) were formulated under the perception that they would be used to bring change to various problems that the country was facing. For instance, the New Deal Act was formulated with the intention of helping the country plan and regulate its economy during the Great Depression of the 1930s (Kerwin & Furlong, 2010). This chapter further makes the assumption that there is a direct relationship existing between statutes and the rules required to implement them. However, despite this, there was no ascertaining the volume and significance of the process of rulemaking that was accomplished by agencies.

Chapter Two of the book also makes a number of presuppositions. One such presupposition is that the elements of the contemporary rulemaking process are heavily linked to the reactions to great expansion that is in the substantive reach of the process. In this sense, the current nature of the process of rulemaking is modeled based on the past reactions that have affected the current due process of rulemaking.

Another significant presupposition that has been made in this chapter is that the process of rulemaking and other administrative functions are manifestations of what was considered a creeping socialism. In this regard, it means that the specter of the unelected and invisible bureaucrats makes rules in virtual secrecy. These rules have the ability to curtail freedom and oversee acts such as the confiscation of property, which is a factor that called for the reformation of the entire administrative process.

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Continuing with this line of thinking, another presupposition that has been made in this chapter is that reforming the administrative process will entail eliminating independent regulatory commissions, which will then be followed by a significant transfer of all adjudicatory powers from the agencies that remain to the federal courts. This will make the process of rulemaking better as it will facilitate the subjection of the process to becoming a quasi-judicial activity that will ensure that every rule that is proposed is enforced through a sort of the formal public hearing. Further, the quality of the rules would be determined using standards of evidence similar to those used in civil trials. The above measures will help transform the process of rulemaking and the entire administrative process.

Another relevant presupposition that has been made in this chapter is linked to the fact that the process of rulemaking is considered one of the greatest inventions of the modern government because it has the ability to duplicate the process of legislation in a manner that is relatively fast and economic in nature. Therefore, in this process, there is a provision of specialized staff who have a narrow scope of responsibility, which makes it significantly effective. Although the above are presuppositions, they form a substantial basis for some of the current aspects of beliefs existing concerning the process of rulemaking. 

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Administrative State as a Headless Fourth Branch of Government

The Administrative Procedure Act (APA) of 1946 perceives administrative agencies as the source of the rules. In addition, this act also presupposes that government agencies perform legislative, executive, and judicial functions. Furthermore, public policy is not included in the agency rulemaking process. According to Kerwin and Furlong (2010), this has resulted in the administrative agencies being referred to as the headless fourth branch of government. It is described as headless since it lacks any official status that confirms that it is a branch of government.

The administrative agencies can indeed be perceived as the fourth branch of government. One way of confirming this is the fact that they have the power to exercise laws passed by Congress as a part of the legislature. In addition, administrative agencies have come to be perceived this way because they have the ability to practice all the three constitutionally divided powers of government within one bureaucratic body. In this sense, agencies legislate (legislative function) by delegating the authority of rulemaking, as well as execute and enforce rules (executive function). Finally, they interpret and implement these rules and ensure the compliance with them (judicial function). In this continued discussion, administrative agencies are also perceived as the headless fourth branch of government because of their role in creating rules with the effect of law. Moreover, given that it is possible for these rules to be comprised partially by either private or non-governmental actors proves the point of those criticizing this body in charge of rulemaking as being the headless fourth branch of government.

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In the further discussion of administrative agencies being perceived as the fourth branch of government, the paradox of discretion mitigates some concerns about unelected government officials making laws by making rules. This can be confirmed by the fact that administrative agencies have the tendency of undermining the rule of law given the extent of discretion they have in the process of rulemaking. The discretion has made it possible for these agencies to decide who is exempted, for instance, politically powerful groups. This move greatly violates the notion that all citizens are equal and are treated equally by the law. Another significant concern of the paradox of discretion is that it leads to the violation of the principles of separation of powers because these agencies have the ability to break down the division among the three constitutional branches of government. Although being granted powers by Congress, these agencies are not accountable to any branch of government and, therefore, the decision on what is considered acceptable and what is not acceptable is at their discretion.

Differences among the Concepts Implement, Interpret, and Prescribe

According to Kerwin and Furlong (2010), the term implement is used when the law or policy associated with a given rule has been fully developed in a statute that is enacted by either congress, executive order of the president, or a judicial decision. Therefore, in this instance, rules made should not provide any additional substantive elaboration. On the other hand, the concept interpret occurs when laws and policies of a given rule have been well established but confront unanticipated or changing circumstances (Kerwin & Furlong, 2010). For instance, this can be perceived in the case of a new business. In this regard, statutory terms, which are clear, precise, and well written, have to be taken into consideration. Finally, the term prescribe should only be used for rules when Congress establishes specific goals of a given law or policy in the statutes. It should also provide a few details about how this law or policy should be put into operation or how it can be achieved (Kerwin & Furlong, 2010).

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Significance of Expertise in Rule Making

There exist a number of reasons expertise is highly regarded in the process of rulemaking. One such reason is the obvious fact that experts know more when it comes to a given matter at hand. In this sense, experts are involved in administering the policy since they know more about the issues being handled compared to the president or Congress. Another relevant reason expertise is an essential element of the rulemaking process is because it establishes standards in the rules developed. For instance, technical expertise is a vital element of devising proper defensible standards when it comes to the study of health and environmental impact. Other essential forms of expertise that have proven significant to the process of rulemaking include legal and economic expertise. To highlight further the significance of expertise in rulemaking, it is crucial to note that expertise brings about details in the process and consequently the rules created. This makes it easier for implementation details to be established in a clear manner.

Impact of the Process of Rulemaking on the Substance of Rules

The process of rulemaking heavily affects the substance of rules, which is asserted by Kerwin and Furlong (2010) in Chapter One of their book. This is because of its role determining the contents of the rules and consequently the quality of life of those whom these rules affect in the end. In addition, this process of rulemaking has been able to determine the substance of rules through a number of other ways. In a way, the process of rulemaking has the potential to impact the substance of rules during the amendment process. The compliance and lack of it will also have an impact on the substance of rules formulated and implemented. It is also possible for the process of rulemaking to impact the substance of rules by its influence on the quantity and quality of the rules made. The process of rulemaking is essential in supporting the determinations and requirements of a given rule, which is found to be relevant in the process of decision-making.

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Acts and Their Impact on Common Law and Adversarial Proceedings

The process of rulemaking under the NIRA and the New Deal Act challenged the common law and adversarial proceedings in the 1930s in various ways, which raised a number of concerns. To begin with, the New Deal Act resulted in an unprecedented process of legislation that completely changed the role of government in a manner that increased the powers and responsibilities of government. The NIRA afforded the president a power to create a body of rules that were known as codes, changing the role of the executive in the process of rulemaking. In this sense, both the NIRA and the New Deal Act made this process a major government function. Therefore, federal agencies were pushed into the shadows, especially given the fact that there was no apparent way of assessing the rulemaking that was performed by them.

The implementation of the Administrative Procedure Act (APA) of 1946 was useful in addressing some of the concerns that had been raised by the NIRA and the New Deal Act. First, the APA empowered federal agencies to gain control of the rulemaking process. The influence of the government was shrunk to a minimum. The disregard of the common law was to be overturned by this act, although it can be argued that this has not been completely achieved. Matters of intrusion in the private lives of people, their property, and individual rights were to be brought to an end by this act.

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The Walter-Logan bill and the Attorney General’s Committee on Administrative Procedure played a significant role in the establishment of the foundation for the APA. The development and subsequent implementation of the APA were done with the aim of overcoming the negative impact of the NIRA and the New Deal Act. The Walter-Logan bill was significant in this process because it brought change to the administrative process. This move rendered rulemaking on a large scale in a way that would prevent the challenge to the common law and adversarial proceedings, as had the NIRA and the New Deal Act. On the other hand, the Attorney General’s Committee on Administrative Procedure laid the foundation for the formulation of the APA, following its role in the research of the administrative procedure (Kerwin & Furlong, 2010). The findings of this committee provided the necessary information that was used in the formulation of the APA.

The Florida Administrative Code and Its Fulfillment of the Aspirations of the APA

The Florida Administrative Code has fulfilled the aspirations of the APA with respect to the core elements of rulemaking, entailing information, participation, and accountability. In the first place, with respect to information, the code asserts the significance of providing information to the public during and after the development of the rule as asserted by Kerwin and Furlong (2010) in their review of the APA. This is postulated by the code’s assertion that basic fairness should be present throughout any government activity in a manner that will allow complete notice of the activities of agencies involved in rulemaking.











Secondly, with respect to participation, the code has been crucial in promoting a significant freedom when it comes to the public participation as postulated in the APA. According to Kerwin and Furlong (2010), under the APA, agencies have been issued with the directive of allowing the participation of the public in the process of rulemaking through the process of writing comments. The Florida Administrative Code has fulfilled this aspiration through an increase in the flexibility of the Florida administrative processes that allow the public to present their views regarding the rules formulated by government agencies related to the welfare of the people of Florida.

Lastly, when it comes to accountability, the Florida Administrative Code has also been successful to a considerable extent. Kerwin and Furlong (2010) reiterate that although the process of accountability is not clear in the APA, the act provides the option of the judicial system through the courts as a way of enhancing accountability in the process of rulemaking. The code has tried to fulfill this aspiration through the promotion of the right of residents to develop a record that can be reviewed by the courts with regard to rulemaking.

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Traces of the above values can be identified in the county-level regulation. For example, there is a substantial amount of consideration with regard to reducing the amount of private knowledge when it comes to the formulation of the county by laws and other rules governing the county. In addition, counties today have broadened the public’s access to information relating to the formulation of laws and rules by inviting the public to take part in the entire process from the beginning to the end.

Eleven Stages of Rule Making

The first stage identified as depending heavily on a competent public administration is stage three, namely the authorization to proceed with rulemaking. At this stage, mechanisms are put in place to authorize the commencement of work on a new rule. The reason this stage requires the competent administration is because it encompasses a significant multiplicity of sources and a large number of potential rule-making projects. Another relevant stage of the process of rulemaking that also depends on the competent public administration is the fourth stage, which Kerwin and Furlong (2010) identify as planning the rulemaking. During this stage, some form of planning is undertaken for all rules that are to be established regardless of their scope or complex nature. This stage requires the public administration to be competent because it is the first order of business when it comes to the active process of rulemaking. Finally, the sixth stage of the process of rulemaking equally depends on the competency of the public administration. The stage encompasses determining whether the rule that has been developed has any impact on areas under its jurisdiction.

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