Statutory and Regulatory Law

When Congress or a state legislature passes a law, it's known as a statute. We think of most federal laws originating in Congress, but many rules are made by government agencies. Agencies are created by Congress (or a state legislature) and are usually controlled by the executive branch. When an agency passes a law, it's known as a regulation. Even though these regulations are not made by Congress, they still have the same force of law. For example, the Federal Communications Commission (FCC) creates rules for broadcasting and cable. The Federal Aviation Administration (FAA) makes rules for airlines and airports. The Food and Drug Administration (FDA) makes rules about food labeling and prescription drugs. All these agencies have their own procedures for creating regulations just like Congress has procedures for creating laws. We call these agency rules regulations instead of calling them laws, but you have to obey regulations just like you have to obey laws!

As a side note, the procedures for creating agency regulations are usually more complex than the procedures Congress has to follow when creating laws. This is because members of Congress are elected by citizens, so if members of Congress pass a law that you don't like, you can try to vote them out of office. In other words, members of Congress can be held accountable for their votes. Agency officials are usually appointed by the president (or, at the state level, a governor). There's no way to vote out a member of the FCC or the FDA since they aren't elected. Therefore, agencies have to follow extra procedures to make sure the process is fair, and they don't abuse their power. For example, the public must be given an opportunity to comment on proposed regulations before they are enacted. The procedures that agencies must follow are known as administrative law.

Businesses that are unhappy with a law passed by a legislative or administrative body will often challenge the new law in court. When reviewing and interpreting laws and regulations, courts typically have two key considerations.

First, did the legislature or agency follow the proper procedures in creating the law? Some procedures are required by the Constitution, while other procedures are created by the legislature or agency itself. If the proper procedures weren't followed, then the law or regulation may be thrown out by the court.

Second, did the legislature or agency overstep its authority? There are two ways of overstepping authority:

1. The agency or legislature operates outside its jurisdiction. For example, the FAA was created by Congress to regulate air travel. If the FAA passed a regulation about cars or trucks, a court would say the agency has exceeded its authority since automobiles and trucks are not within the FAA's jurisdiction. (Note that Congress could pass a new law giving the FAA jurisdiction over cars or trucks if it wanted to.)
2. The government passes a law that infringes on constitutional rights. For example, the FAA has authority over airplanes, but it cannot require everyone to undergo a strip search before getting on an airplane because this procedure would be considered an unreasonable search in violation of the Fourth Amendment. So even though the FAA has the appropriate jurisdiction to regulate air travel, it still cannot violate the rights guaranteed by the Constitution.

Remember that every state has its own constitution, so state and local government entities have to follow the state constitution as well as the federal constitution. For example, if the city of Pittsburgh passed a regulation restricting the use of Facebook, a court would ask

1. did the city follow the proper procedures in passing the regulation,
2. does the regulation exceed the city's authority under the state constitution and state law, and
3. does the regulation violate citizens' rights under the state constitution and the federal constitution?

The process of evaluating whether a law is constitutional is known as judicial review.