Measuring the power and effect of public policy can often seem like more of an art than a science, given the complexities of federal governance. Our representative democracy was designed with an evolving national landscape in mind, based on a system of checks and balances. While this helps to prevent one branch of government from acquiring too much power, our policy-making process can be confusing even for those who analyze policy full-time.
The Informal Rulemaking Process
Legislation is often operationalized through rulemaking by an administrative agency, such as the Department of Education. Rules can include details on process and oversight procedures to ensure proper implementation of the law.
The rulemaking process begins with information gathering, which is the work of administrative agencies. Information may be collected through a series of mixed methods including the retrieval of qualitative and quantitative data through the conduction of focus groups, surveys, and analysis of existing data. To collect information, an agency must submit a proposal to the Office of Information and Regulatory Affairs through the White House Office of Management and Budget for review, while simultaneously posting the request publicly to the Federal Register, the daily journal for the federal government. The Office of the Federal Register creates the Code of Federal Regulations, an annual archive of regulations listed throughout the year.
Once data has been collected, an agency might detect the need for the creation of a new rule. This is not always a linear process. Sometimes the need for a rule is determined by nationwide cultural shifts toward a specific topic or issue. The September 2018 proposed rule on Title IX came about after a national conversation around sexual harassment in higher education had evolved to include concerns about protecting the rights of accused students during the adjudication process. In response to these concerns, Secretary of Education Betsy DeVos and her staff in the Office for Civil Rights rescinded many of the provisions established by the Obama administration.
When the need for a new rule is determined, the informal rulemaking process is subject to a notice and comment period, as required by the Administrative Procedures Act. The agency identified as responsible for that rule must create a proposal and have the Office of Management and Budget the of cost-effectiveness. If determined to be cost-effective, the rule may be released to the public to provide an opportunity for anyone interested to submit comments or concerns within what is typically a 60-day window. The period for public comment regarding Title IX was extended by one day due to a technical issue related to the partial federal government shutdown in January 2019.
Following the comment period process, the agency must base its reasoning and conclusions on the comments, scientific data, expert opinions, and facts accumulated during the stages prior, and respond to comments of substance, as stipulated by the Federal Register. Substantial comments may require the agency to propose a supplemental rule or even terminate the original rule due to new data or policy arguments made during the comment period. If the changes are small or a logical addition to the current draft rules, the Office of Management and Budget will evaluate the cost-effectiveness of alternative solutions. The agency responsible must issue the final rule on the Federal Register with an implementation timeline. The Office of Management and Budget has visualized the informal rulemaking process in a flowchart that is a great resource to gain a better understanding of the possible steps and governing bodies involved.
The Role of the Legislative, Executive and Judicial Branches
Congress either directs government agencies to create regulations or leaves the implementation up to the discretion of the appropriate agency. Congress can also influence rulemaking through legislative program reform. In the case of Title IX, Democrats in Congress have indicated that they intend to include language related to Title IX in the Higher Education Act reauthorization bills. Additionally, Congress can provide oversight to administrative agencies by holding committee-led hearings on nuanced topics that offer a platform for experts in the field to testify.
The White House provides important oversight to the rulemaking process by reviewing proposals through the Office of Management and Budget. Agencies need to comply with Executive Order 12866, created by President Clinton in 1993 to establish guiding efficiency principles for agencies to follow. In 2011, the Obama administration made changes to EO 12866 that revisions to regulations are still subject to today. The changes resulted in EO 13563, creating five new guiding principles in the rulemaking process with an emphasis on public participation, regulatory flexibility, distributive impact, and cost-effectiveness. Similar to Congress, the White House may also direct government agencies to construct regulations to uphold executive-level policies.
The judicial system holds the power to interpret whether a government agency is following the law as prescribed by the Administrative Procedures Act, EO 12866, and EO 13563. As described in NASPA’s Q&A guidelines on submitting public comments, rules are often subject to lawsuits as a tactic by advocacy groups to delay implementation. If the agency does not properly respond to comments of substance before releasing a final rule, that agency may be liable in a lawsuit. If found in violation of the Administrative Procedures Act, rules might be vacated or remanded back to the agency for revision. Implementation can be delayed should the agency not properly disclose information to the public through the federal register.
The measures of oversight provided by the three branches of government work to create balance in the rulemaking process. The overlapping roles within the government have also created confusion for institutions of higher education as rules are revoked, delayed, and reinstated, creating a scramble at times, by administrators to maintain compliance. NASPA staff work to provide clarity and identify partners in the field best able to support NASPA members regarding the current status of regulations and the responsibility of colleges and universities in the process.