The regulatory rulemaking process is among the most consequential and least understood mechanisms through which American governance actually operates.
How Regulation Is Actually Made
Most of the substantive regulatory decisions that govern economic and social life in the United States are not made by Congress. They are made through the rulemaking process — the administrative procedures through which executive branch agencies translate the broad legislative authority that Congress has granted them into the specific rules that govern behaviour in their regulatory domains. The Clean Air Act's general grant of authority to regulate air pollutants is translated into specific emission standards through EPA rulemaking. The general grant of authority to regulate food safety is translated into specific food safety standards through FDA rulemaking. The Dodd-Frank Act's general grant of authority to regulate financial risk is translated into specific capital requirements, risk management standards, and consumer protection rules through the rulemaking of the agencies it created.
The rulemaking process — the notice of proposed rulemaking, the public comment period, the final rule with response to comments, the legal review — is the procedural framework that allows agencies to exercise their delegated legislative authority while maintaining the accountability and deliberation that the Administrative Procedure Act requires. It is slow, technically demanding, and legally vulnerable to the judicial review that every rule of consequence eventually faces from the affected parties that did not get the outcome they wanted.
The Limits of Rulemaking
The limits of rulemaking as a governance mechanism are its pace, its reversibility, and its legal vulnerability. Rules that take years to finalise can be reversed by subsequent administrations; the regulatory accomplishments of one administration are the regulatory targets of the next. Rules that survive administrative reversal may be challenged in court, and the increasingly aggressive judicial review of agency authority that the major questions doctrine and the nondelegation doctrine represent create additional vulnerability for significant regulatory decisions.
Regulatory rulemaking is the mechanism through which most American governance actually occurs — and the mechanism that is most vulnerable to the combination of administrative reversal and judicial challenge that the current political and legal environment makes increasingly likely. The regulation that survived the rulemaking process is not the regulation that will necessarily govern behaviour five years later.
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