Legal-Ease: Levels of legal authority


Lee R. Schroeder

In the United States and in Ohio, there are literally thousands of laws that are created by bureaucrats who do not work for Congress, the Ohio General Assembly or any local government.

Of course, Congress passes bills that can become law if signed by the president or if a two-thirds majority of both houses of Congress overrides a presidential veto. Laws passed by Congress are usually published as a part of the U.S. Code. Obviously, laws passed by Congress cannot exceed the authority granted to the federal government in the Constitution.

However, there are many federal laws that are not passed by Congress. Those laws are called “regulations.” Regulations are laws created by bureaucrats in federal, presidential departments such as the departments of commerce or agriculture. Regulations have the force and effect of law, but they cannot exceed the authority granted in the Constitution or the laws passed by Congress.

Congress must literally pass a law to give specific authority to a presidential department to create regulations in a particular subject area.

Presidential departments must go through a lengthy process to create each regulation, including publishing the proposed regulation in a series of books called the “Federal Register” months in advance and allowing the general public to “comment” on the proposed regulation. Final regulations compose the federal Code of Regulations and are re-printed in the Federal Register.

The same structure of constitution, legislative laws and regulations is used in Ohio. In Ohio, laws are passed by the Ohio General Assembly and signed or vetoed by the governor. Those laws are almost always made a part of the Ohio Revised Code, Ohio’s equivalent to the U.S. Code.

In Ohio, regulations are organized as a group and called the “Ohio Administrative Code.” The Administrative Code is Ohio’s equivalent to the federal Code of Regulations.

There are publishing requirements and public comment opportunities that must be followed and offered in creating Ohio’s regulations, too. As expected, the Revised Code cannot exceed the authority granted in the Constitution, and the Administrative Code cannot exceed the authority granted in the Revised Code or the Constitution.

Of course, local governments such as townships, towns and cities can pass laws, and the process for those laws’ approvals vary by location.

The interaction between legislative laws and regulations is crucial to how we do business, protect our property and live our lives. Because state and federal regulations are being proposed every day, most of us lack the time to monitor whether any proposed regulation may be good or bad for us.

This makes trade associations a crucial component of our society. Groups such as chambers of commerce, Farmers Union, Farm Bureau and other industry-specific groups monitor regulations and educate members when proposed regulations may affect members.

For example, the idea in 2011 that was to require farmers to have commercial drivers licenses to operate tractors or combines was a proposed federal regulation. Industry trade associations empowered their members to use the public comment process to convince the U.S. Department of Transportation to abandon that regulation.

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