I’m working on a political science question and need an explanation and answer to help me learn.

Learning Goal: I’m working on a political science question and need an explanation and answer to help me learn.

–Steven F. Hayward, “The Threat to LibertyLinks to an external site.,” Claremont Review of Books, Vol. XVII, Number 1, Winter 2016/17.

If Federal Regulators Aren’t Experts, The Entire Administrative State Is Suspect-ForbesLinks to an external site.

The legitimacy of top-down rulemaking and planning by Administrative State experts rather than lawmaking by Congress is largely uncontested.

The rationale for today’s all-encompassing Administrative State regulation is that government actors are non-self-interested experts, and that political mechanisms are fairer and better at advancing well-being than private markets and interactions. The shift from the Framers’ classical liberal view that most complex problems are not public policy questions at all and are best solved voluntarily by individuals — to the view that large government is essential in all walks of life — has been remorseless.

A major recent case (Kisor v. Wilkie)Links to an external site. in the Supreme Court retains the concept of mandatory deferenceLinks to an external site. to these “experts,” albeit when heightened restrictions are metLinks to an external site.. Along with the continued insult to separation of powers (via re-legitimizing at the highest possible level the concept of delegation of lawmaking responsibility and authority) a problem with failing to revoke deference entirely is that so much agency guidance and interpretations never go through the formal Administrative Procedure Act rule-making process at all. The inadequate APA is all that remains when Article I is cast aside.

An even deeper non-legalistic problem: If the unchallenged presumption that expertise primarily resides at federal agencies is wrong, so is the entire Administrative State concept.

The system and the Administrative Procedures Act requires that ALJ’s (and everyone else) defers to these Experts.

Federal Rule-Making ProcessLinks to an external site.

Federal regulation, like taxing and spending, is one of the basic tools of government used to implement public policy. The process of developing and framing rules is viewed by some as central to the definition and implementation of public policy in the United States.

Regulations generally start with an act of Congress, and are the means by which statutes are implemented and specific requirements are established. The terms “rule” or “regulation” are often used interchangeably in discussions of the federal regulatory process. The Administrative Procedure Act of 1946 defines a rule as “the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.”

During the past 60 to 70 years, Congress and various Presidents have developed an elaborate set of procedures and requirements to guide the federal rule-making process. Statutory rule-making requirements applicable to a wide range of agencies include the Administrative Procedure Act, the Regulatory Flexibility Act, the Paperwork Reduction Act, the Unfunded Mandates Reform Act, and the Information Quality Act. These and other cross-cutting rule-making requirements often require some type of analysis on the part of the rulemaking agency before issuing a covered rule, but also often give agencies substantial discretion regarding whether the requirements are applicable.

In addition to statutory requirements, Presidents have also imposed their own requirements on federal agencies when issuing rules. The most important of the current set of presidential rulemaking requirements are in Executive Order 12866, which establishes presidential review of covered agencies’ rulemaking within the Office of Management and Budget’s (OMB’s) Office of Information and Regulatory Affairs (OIRA).

The executive order requires covered agencies to submit their significant rules to Office of Independent Regulatory Affairs (OIRALinks to an external site.) for review before they become final, and requires those rules to meet certain minimal standards. Other executive orders and presidential directives delineate other specific rulemaking requirements incumbent on covered agencies. However, these requirements also often provide substantial discretion to agencies regarding whether, and if so how, they are applied.

Students should open the following link to C.3.2.5 The Federal Rule-Making Process to complete this assignment.

After reading the information above, reviewing the C.3.2.5 The Federal Rule-Making Process page, and viewing the videos above-comment on the following

QuickWrite Questions:

1. How does the Creation of Agencies, Administrative Law, and Administrative Law Judges enable the Executive Branch to implement and control the statutory obligation of Congress?
2. How does the Rule-Making Process integrate the “values” of the (1) industry being regulated and (2) the input of the pubic and those impacted?
3. How are Administrative Law and Administrative Law Judges (ALJ’s) like their “real” law counterparts…. but yet they are not? How is the Administrative Procedures Act a Constitution for Administrative Law?