by Jon Sanders
Director of the Center for Food, Power, and Life, Research Editor | John Locke Foundation
It's much easier for unelected bureaucrats to make rules than for elected legislators to pass laws, and that's a problem
In North Carolina, laws are made by only one of the three branches of government: the General Assembly. It is important to know why the legislative branch has this exclusive power in order to understand why strong legislative scrutiny of regulations (rules that function like laws but are created by executive branch departments and agencies using power delegated from the legislature) is vital.
As stated in Article II, Section 1 of the North Carolina State Constitution, “The legislative power of the State shall be vested in the General Assembly, which shall consist of a Senate and a House of Representatives.” To be clear, legislative (i.e., lawmaking) authority is vested only in the General Assembly. Article I, Section 6 of the state constitution states the separation of powers: “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.”
Where does these powers come from? The people. Article I, Section 2 states: “All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.” Legislators are elected representatives of the people, answerable to the people, who are tasked with making laws.
What makes the legislature distinct from the other two branches of government (executive and judicial) is that the legislature makes the laws. Making law is a very deliberative process that starts with a bill in one of the two chambers of the legislature (the Senate or the House). In simplest form, that bill must receive a favorable vote from a majority of legislators in its original chamber, then do the same in the other chamber, and then be signed into law by the governor. The full body of laws in North Carolina are contained in the North Carolina General Statutes.
What makes the legislature distinct from the other two branches of government (executive and judicial) is that the legislature makes the laws. They are elected by the people, who are the true source of their lawmaking authority.
Of course, legislators use a far more probing, analytical process than that, involving subcommittees, rewrites and rethinks, compromises, conference committees, even potential vetoes and overrides. Here is a flowchart provided by the General Assembly to show how a bill eventually becomes law.
Note that at any point along the way, legislators can decide to take a bill no further and let it die: whether ignoring it when it is drafted, a committee deciding not to recommend it, the other chamber deciding not to support it, and so forth on up to legislators choosing not to override a veto of it.
The lawmaking process is far more difficult place for a proposed course of action than is the rulemaking process.
With such deliberation, it’s no surprise that only a fraction (about one in five) of proposed bills ever become law. The lawmaking process is far more difficult place for a proposed course of action than is the rulemaking process.
Regulations (also called rules) are made by state departments and agencies, which are entities of the executive branch. The full body of rules in North Carolina are found in the North Carolina Administrative Code.
The process for making rules is given by the state Administrative Procedure Act (APA). It seems very deliberative; just look at this flowchart provided by the North Carolina Office of Administrative Hearings.
Nevertheless, despite such a busy-looking process, nearly every proposed regulation goes on to take effect as a final rule. As unelected bureaucrats, regulators are not directly answerable to the voters. They are ultimately answerable to the governor, the head of the executive branch.
Regulations, however, have the force of law. If lawmaking power is supposed to be forever separate from the powers of the executive branch, then how is it that state agencies can create what amount to laws?
They do so with authority delegated to them by the legislature. The idea is that lawmakers determine by law the direction the state should go in a policy area, and then have the relevant agency devise the rules to achieve the legislature’s will expressed by the law. But what if the regulators draw up rules that go beyond what the legislature wanted? It’s an all-too-real problem.
While it is easy to promulgate rules, the process for legislators to block rules is the much more difficult legislative process. In the APA, if the adoption of a permanent rule receives 10 or more objections from people, then its effective date is delayed and it is sent before the General Assembly. Legislators can vote to disapprove the rule or not, and if they don’t specifically vote to disapprove it, the rule will go on to take effect. It’s a big ask with so many other items on their typically tight schedules, and frankly, if legislators were interested in using lawmaking for finer regulation, they would be doing so already.
A 2010 study by the John Locke Foundation showed how rare it is that a permanent rule gets blocked by the legislature. It found that, of the 6,510 permanent rules introduced between fiscal years 2004-05 and 2008-09, only 218 (about 3 percent) were subject to legislative review. Of those, only 28 actually had bills filed to disapprove of them, and of them, only seven passed.
Since it’s the legislature’s authority that agency bureaucrats are using, the legislature must be very mindful of how they use it and not let them go overboard.
So only about one-tenth of one percent of regulations were ultimately blocked, whereas over 80% of proposed bills fail to become law. Lawmaking is a difficult, deliberative process by legislators answerable to the voters who elected them. In contrast, rulemaking is a much easier process by unelected executive agency bureaucrats using lawmaking authority delegated to them by the legislature.
Since it’s the legislature’s authority they’re using, the legislature must be very mindful of how they use it and not let them go overboard. The John Locke Foundation’s red tape and regulatory reform recommendations are geared to help the legislature do just that.