Is There a Legal Difference Between Statutes and Rules? [No. 86]

Is a rule passed by an administrative agency essentially the same as a statute passed by Congress?
Professor Gary Lawson outlines the similarities and differences between the procedures of rule-making and legislating. Although rules and laws are promulgated in different ways, the legal force and effect of both are basically the same.
Professor Gary Lawson is the Philip S. Beck Professor of Law at Boston University School of Law.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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[@mistersauga716]

Never stop making these

[@fwcolb]

There is little difference in legal * consequences * between statutes and rules (regulations) because the regulations derive their power from the parent statute. But there can be legal challenges based on (1) the statute being overly broad or vague. And (2) the rules can be challenged for going beyond the power delegated to the rule-making agency. Under (1) above, a statute could be declared to delegated to the agency too much power, based on the principle that under the Constitution, Congress is the law-making branch. Congress cannot divest itself of its responsibilities by delegating its power to the executive branch. (The separation of powers principle.) A conservative SCOTUS with a majority of originalists could reduce the rule-making activity of Federal agencies by declaring more statutes to be overly broad if this approach were sustained for decades. In principle, the US is a common-law jurisdiction, but the Federal Government and its agencies legislate like civil law jurisdictions especially since the New Deal of FDR. The Congress sketches to law in outline and then tell the executive branch agencies to fill in the details. So the US gets one part law and 100 parts regulations.

[@msec109]

Could you please clarify how civil law (ie. codified law over precedents) is related to New Deal? Shouldn't US be civil law, not common-law since stare decisis can be overturned (eg. Roe V. Wade)

[@stephen1137]

@@msec109 The answer lies in the corruption which was there at the start. The Constitutions are supreme law of the land. The Constitutions are also common law documents and can only be understood in common law terms. This is why we should raise our eyebrows when the first assertion is made in the judiciary that there is no federal Common Law. But I would have to do a good deal more reading to really get a grip on this issue. Until the Clearfield case decision in 1943, Federal courts deferred to the applicable state's common law depending on geographical location of the facts of the case. This must have led to a lot of legal uncertainty when dealing with events or acts which took place across state lines. I know that the Federal Reserve Act brought with it significant distortions in the government identity as a public governing power. After the U.S. Government was declared bankrupt and liquidated in 1933, it had to have thereby taken on the legal status of a privately managed enterprise for the benefit of the lender and I think, by that fact, a privately owned governing authority. Maybe this explains the 1938 Erie decision that each federal court must apply the law of the state in which it is sitting. It could not be that in the previous 149 years of the United States, this question never had to be answered. it had to have been because some more recent development took place which made it a new question that had to be addressed. To make it even more confusing fo me is the ruling in 1943 on the Clearfield case. This ruling was a unanimous SCOTUS decision that when the federal government was dealing with a case in which it was a party, and its actions in the controversy were part of its constitutional authority, the federal court was then considered to have authority to make its own common law rule. In any event, the fact that the Constitution's are legally considered to be common law instruments, and only understandable in common law terms, and are the supreme law of the land, then everything else has to in some way be considered dependent upon the controlling power of the common law.

[@ItsNeverTooHot4Leather]

Congressional delegations of power have been upheld by the Supreme Court going all the way back to Wayman v. Southard (1825). The Supreme Court has also been willing to strike down delegations of power when the level of discretion becomes arbitrary, resulting in a violation of the rule of law. My issue with the notion of executive rule-making is the fact that it is done within the executive branch. I think the legislative nature of the rule-making process (i.e. rules have the same legal force as congressional statutes) should be done by legislative branch agencies, who could then coordinate with their respective executive agencies who would then implement/enforce them. Congress, via the Necessary and Proper Clause, should be empowered to create legislative agencies to assist it in its legislative functions (such as rule making), but the delegation of the rule making power to the executive branch is, as I see it, a violation of the legislative non-delegation doctrine.

[@noah122804]

City Mayors and their council are considered an agency since they are incorporated? A mandate is not a law...what is the difference between a mandate and law? Where does the Constitution come in if we are under Uniform Commercial Codes/ Maritime/ Admiralty Law? Do 'rules', mandates,statutes, laws only apply to our corporate fictions? (Name spelled in ALL CAPS) etc, etc

[@melissaball2773]

Uniformity means that laws are aligned in an order that is clear. They are aligned with other laws and do not misrepresent or overturn each other. That is how the United States is set and why we rely so heavily on our Judicial Branches of governments to do their jobs! It's a well thought out alignments. Cities have codes and there are checks and balances that have to be in alignment with state and federal laws.. Cities can not make laws that violate your rights but they can make laws that protect their citizens.. they also have to be knowledgeable of both the US Constitution and your States Constitution..then they can make rules under that, but NEVER STRONGER.

[@melissaball2773]

Also, your state Judicial Branch will explain it to you!!! That's where I went! Spent many hours... But yes, mandates and orders are not law. If it hasn't been determined by legislature or city code...and it seems like it violates your rights then it's probably BS.

[@bryonwatkins1432]

Most Bar attorneys don’t know that because law schools don’t teach ACTUAL law, only statutes, codes, ordinances, etc. Those are NOT law.

[@melissaball2773]

The United States Of America Constitution (and bill of rights) is the Supreme Law of the Land. It provides a foundation for the people. No law enacted can deprive a person of their rights under the US Constitution. That would make it null or invalid. If a State wants to amend their State Constitution, they have to submit that to the Federal Government (US SUPREME COURT) for approval before it becomes valid. *Just learned that in DC* Part of their "contract" of being in the Union. No, a mandate is not law, you are correct. Cities have to seek approval from the State to make sure their laws are aligned with both State and Federal laws. Checks and Balances. I would assume this would assist in the who's in trouble when something goes wrong.

[@bryonwatkins1432]

Melissa Ball Try telling that to Bar attorneys with two plus Bar cards with ten plus years experience. In some of my law classes, when i brought up EXACTLY what you said, they looked at me dumb whilst my professor commended how much law i study 📖 on my off time. i started studying laws (4th amendment history mainly) a couple of years before i started taking law classes. But, i study a lot of law area’s. And from what i have learned and have seen, let’s just say Arizona former Appellate Judge, John Molloy; former Minnesota Judge, Dale Lindman, former United States Supreme Court Associate Justice, Antonin Scalia (my favorite); Harvard Law Professor, Mary Ann Glendon, former Yale Law Professor, Fred Rodell, what they have said about attorneys knowledge over the past 35 years, i say, no shit!!!

[@melissaball2773]

I didn't see the judicial branch in this video...missing one of the most important branches of our government making sure everything is legal and protecting the rights of the people. Also, an agency also has the LIABILITY (BIG WORD) to make sure they are not violating people's rights when making "rules". The hoops means just that... covering their bases and protecting both the interest of the business and the people. Limited Liability is not an excuse for ignorance.

[@bryonwatkins1432]

BINGO.

[@ItsNeverTooHot4Leather]

He mentioned that judges can review the regulations. This occurs through litigation.

[@blueknight5754]

The agencies have run amok with little to no oversight

[@jzk2020]

Good explanation.

[@artsomniacv-logcitybydanie1249]

Rules and statutes have to be accepted. A law is supposed to be based on common sense.

[@jjbotha6242]

A good video. Just a pity for the distracting music

[@patrickjohnson7401]

What states allow legal youthinasia?

[@Dani-ELmaninnoboxes]

How caN congress do this during a time of emergency

[@tcalip2968]

The violaters of Alameda County who has purposely violated the steps of the law and deprived Someone of the law under the Color of Law is facing a variety of imprisonments including the death penalty. The President and the Congress is fully aware of these serious offenses that resulted in my medical health being compromised and my younger Son being abused. The President and the Congress has violated the actions to enforce this law in Alameda County. No One can pretend to have authority that they do not have over this law. I have encouraged Everyone in Alameda County that are sick and tired of troublemakers to join in the fight with me to indict these extremely reckless and deceptive agitators. Thanks for sharing

[@dazzh3834]

turn down the dang background music LOL

[@DaCheapChimp]

We call it "The Aristocrats"😂😂😂😂😂

[@yaz1775]

Better call saul??

[@man-sc6xk]

Legal is illegal and law is law. It's a constitutional republic not a freaking democracy

[@dustinhedden2593]

Agency Rulemaking is far more efficient and it I'd more accountable to the public.

[@stephen1137]

Says the totalitarian. And no they are typically not accountable and routinely obfuscate, mislead, and hide or destroy evidence of their criminal activities.

[@blueknight5754]

The agencies have run amok with little to no oversight