As I have experienced first-hand, NC agencies stretch the meaning of statutes to try and give themselves the power to issue regulations.
Under existing law in North Carolina, the Rules Review Commission (RRC) which reviews regulations before they are finalized, examines whether there is statutory authority for a rule.
However, the RRC rarely will reject a rule based on a lack of statutory authority. This makes some sense because statutes usually are so broad that a court often would find that an agency has statutory authority and in part because courts give significant deference to agencies.
This unfortunately leads to situations where agencies can take actions that the legislature never intended and where the “best” reading of the statute is ignored.
The RRC should have the power to make sure that agency actions are clearly allowed by statutes.
Here’s what wrote in my report:
However, this is not a question of how the courts will rule; instead, it is question of what standard should apply in the regulatory review process to make sure that agencies are not pushing their authority beyond what has clearly been delegated to that agency. When statutory authority is in question, the presumption should be that there is not statutory authority, not that there is authority. If questions regarding statutory authority get to the point where it is reasonably unclear whether agencies led by unelected bureaucrats can make major policy decisions (i.e. through regulations), then the presumption should be that the legislature, a representative body accountable to all citizens, should make the decisions.
More on regulatory reform soon.
Background: My first post providing general background on regulatory reform, my second post on the impact regulation has on business, and my third post on the NC regulatory oversight process.
Here’s my report providing a lot more detail on regulatory reform in North Carolina (PDF).
