The Rulemaking Power Of Independent Regulatory Agencies

1 The Rulemaking Power of Independent Regulatory Agencies Dominique Custos1

I. Definition and characteristics of Independent Regulatory Agencies (IRAs) II. Definition of rulemaking power in national law III. Source of IRAs’ rulemaking power IV. Origins of IRAs and their rulemaking power V. Extent of the autonomous rulemaking power of IRAs V.1. Adoption of the regulation V.2. Form of theregulation V.3. Characteristics of the regulation V.4. Legal force of the regulation V.5. Comparison with adjudicatory powers of IRAs V.6. Place in the hierarchy of norms VI. Control of the rulemaking power of IRAs VI.1.Congressional and presidential oversight of IRAs VI.2. Influence of regulated industries IRAs VI.3. Judicial review of IRAs’ action VII. IRAs’ soft law practice

Professor of law atLoyola University New Orleans; Ph.D, Panthéon-Sorbonne Law School, 1989, Agrégation, Droit public, Paris, 1994.

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2 The legal regime of the rulemaking power of the American Independent Regulatory Agencies (IRAs) is mostly similar to that of their executive counterparts. Its peculiarity is essentially confined to its relative insulation from the President. Therefore, its study provides asubstantial appraisal of the rulemaking power in the United States, in general.

I. Definition and characteristics of Independent Regulatory Agencies (IRAs) Similar to European constitutions, the U.S. constitutional text has no provision dealing with independent regulatory agencies. Its ‘necessary and proper clause’ merely confers the authority to create the government on Congress2. Apart from aconstitutional reference to the cabinet departments3, the design of the U.S. federal government is Congress’s responsibility. Therefore, the establishment of the category of independent regulatory agencies, at the American federal level, as in European countries, results from legislation. The definition and characteristics of American independent agencies must be articulated against the backdrop ofthe structure of the U.S. government. Beside the presidency, the study of the structure of the U.S. government stresses a main distinction between executive regulatory agencies and independent regulatory agencies. The distinction is based primarily on their respective location in the administrative architecture and secondarily on their distinct type of leadership. The executive agencies are cabinetagencies directly located within one department in the Executive Branch whereas the independent agencies are placed outside such presidential realm4. As multi-member agencies, they are headed by a college of

Art. I, Sec. 8 , cl. 18 of the U. S. Constitution reads: ”The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powersand all other powers vested by this constitutions in the government of the United states, or in any department or officer thereof” 3 Art. II, Sec. 2, cl. 1. of the U.S. Constitution reads: The President may require the opinion, in writing of the principal officer in each f the executive departments, upon any subject relating to the duties of their respective offices”. Currently, they are 15executive departments. 4 There is some uncertainty as to the nature of 2 agencies that are generally characterized as independent agencies even though it is located in a department: Federal Energy Regulatory Commission (department of Energy) and Occupational Safety and Health Review Commission (Department of Labor). In the case of the FERC, Professor Schwartz questioned the independent nature;Professors Davis, Pierce and Strauss do not : Bernard Schwartz, A decade of Administrative Law: 1986-1997, 32 Tulsa Law Review, 493, 579

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3 commissioners and are otherwise referred to as ‘commissions’. Comparatively, the executive agencies are under the leadership of a single administrator. The rules governing the appointment and the removal of the commissioners guarantee their independence....