By Yvette Farnsworth Baker
Administrative agencies are a powerful but underappreciated component of federal, state, and local government. They are not mentioned in the U.S. Constitution, yet they’re sometimes called the fourth branch of government. Between 2019 and 2020, Congress passed only 344 laws, while federal administrative agencies enacted 5,838 rules. Understanding administrative agencies is a critical part of advocating for ethical governance.
What are federal administrative agencies?
Federal administrative agencies are delegated power from the executive or legislative branch of government. They are tasked with executing and enforcing laws passed by the legislative branch. Often, when a law is passed it requires more detailed rules and guidance to be implemented effectively, so the legislature will grant authority to one or more agencies to fill that specific role. Agencies then utilize their specialized knowledge to enact regulations and issue opinions that will assist in executing the legislation.
Most citizens are more familiar with federal administrative agencies than they realize. Examples of federal administrative agencies that are delegated power from the executive branch include the Department of Defense, the Department of Education, and the Environmental Protection Agency. Even these agencies have sub-agencies to which they delegate power, such as the U.S. Patent and Trademark Office (under the Department of Commerce) and the Food and Drug Administration (under the Department of Health and Human Services). Examples of federal agencies delegated power from the legislative branch are the Government Accountability Office and the Congressional Budget Office.
How do federal administrative agencies pass regulations?
At the federal level, administrative agencies must issue all regulations through an open, public process. This may include public hearing, published notice of proposed rules, and identification of the legal authority for the regulation.
Federal agencies’ regulatory plans for the year and proposed regulations are published in the Federal Register. When “Advance Notice of Proposed Rulemaking” is published, a comment period is open for members of the public to submit comments on the proposed regulation. These comments, among other things, can be used to express support or non-support for a proposed rule, to explain how the proposed rule may negatively impact certain groups or people, or to provide additional information or data that may be useful in developing the regulation. The comment period usually lasts about 30 to 60 days. Federal agencies are required to consider all comments received.
State and local administrative agencies
Some state and local administrative agencies run very similarly to federal agencies, while others do not. The U.S. Constitution does not mention administrative agencies, but a few states have constitutional administrative agencies. For example, the Arizona State Constitution creates the Arizona Corporation Commission, an agency that regulates certain utilities within the state.
State and local agencies have a big impact on the lives of their constituents. State agencies can include administrative bodies like a state department of education, a department of children and families, or a state department of fish and wildlife. Local agencies can include a parks and recreation department and agencies responsible for zoning regulations.
How can I effectively advocate to administrative agencies?
Commenting on proposed rules with relevant and compelling information is one way to effectively advocate to administrative agencies. Federal agencies must consider all comments submitted and are required to respond in some way to comments in the preamble to the final rule. If they choose not to incorporate suggested changes, there must be some explanation as to why, even if brief. Comments can be submitted electronically through a simple process at regulations.gov.
Sometimes a proposed rule will include a prompt, which indicates that the agency is particularly interested in hearing comments from the public on a certain issue. These prompts may ask for data or evidence. When commenting with evidence, cite your sources to support your position.
Executive order 12866 requires federal executive branch agencies to consider the costs and benefits of all regulations as well as the alternatives. Consequently, one way to effectively comment on a proposed rule is to highlight the cost-benefit analysis of the regulation compared to an alternative and/or compared to maintaining the status quo. Specific information on the cost or benefit (or lack thereof) can be especially persuasive.
Additionally, contacting administrative agencies, legislators, or the office of the executive is another way to voice opinions regarding the way administrative agencies operate. The website usa.gov has a list of contact information for all federal agencies, and many state government pages have equally accessible lists of the administrative agencies for that state. If legislators want to mandate that administrative agencies change their practices or regulations, they can pass laws that administrative agencies are then constitutionally bound to follow. If agencies are executive branch agencies, the executive of that entity (e.g., the president, governor, or mayor) has the power to direct their operations. Reaching out to convince the agency themselves, the legislators, or the executive can work to enable change of an administrative agency’s rules, policies, or practices.
In some ways, it may be easier to advocate to administrative agencies than to elected officials. Most agency officials are not political appointees and remain in their positions regardless of which political party is in power. They may be more amenable to hearing ideas and solutions that are non-partisan because they feel less hemmed in by party politics then do partisan elected officials. Advocacy groups do not usually focus on contacting administrative agencies as often as they do legislators, so it may be easier to obtain contact whether in person, virtually, or telephonically.
Conclusion
Understanding the vast influence administrative agencies wield and then advocating to them and working with them toward positive goals can be a powerful tool for change and ethical government.
Sources:
Michael Bobelian, “In Its Latest Ruling Against The EPA, The Supreme Court Strikes Another Blow Against Regulatory Authority,” Forbes, June 30, 2022.
Office of the Federal Register, “A Guide to the Rulemaking Process.”
Shagufta Ahmed, Shannon Joyce, and Adam Looney, The Brookings Institution, “How to effectively comment on regulations,” August 2018 (updated November 2022).
Sharmila Sandhu, The Center for Association Leadership, “Strategies for Effective Regulatory Advocacy,” November 8, 2021.
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