Regulatory agencies are governmental bodies created by legislatures to carry out specified state or national policies. Such an agency is typically responsible for regulating one particular area of social or economic life; it is staffed by specialists who develop the knowledge and experience necessary to enforce complex regulatory laws. Regulatory agencies normally combine the powers to make rules, to adjudicate controversies, and to provide ordinary administrative services, functions corresponding to the legislative, judicial, and executive powers of the separate branches of government. They fill in the gaps of general policy by bringing order, method, and uniformity to the process of modern government.
Although administrative agencies are as old as the federal government, the national regulatory process as we know it today began with the creation of the Interstate Commerce Commission in 1887. Granted extensive authority over the booming railroad industry, the commission received broad rule-making and adjudicatory powers, broader than those of any previous agency. It set the trend, and the goal, for future agencies by being the first governmental unit "whose single concern was the well-being," as James Landis said, "in a broad public sense, of a vital and national industry."
Since the new deal, regulatory agencies have become the most visible tool for the achievement of national policy. They provide a form of centralized supervision which in earlier periods of American history was deemed neither necessary nor desirable. Their proliferation paralleled the development of national industries and the emergence of Congress as a policymaking body unable to supervise the details of administration. At the same time, a growing welfare state has recognized new interests such as welfare entitlements and equal employment opportunity. New regulatory agencies have been created to provide sympathetic administration of the new national policy goals, and to resolve conflicts by procedures less formalized and adversarial—and far less costly—than those prevailing in courts of law.
The character and origin of a regulatory agency depend on the nature of its tasks. Generally, such agencies fall into three main categories: independent regulatory commissions; executive agencies; and government corporations. The independent commissions, so called because of their relative freedom from executive control, are the most important, and include such agencies as the Interstate Commerce Commission (ICC), Securities and Exchange Commission (SEC), Federal Trade Commission (FTC), National Labor Relations Board (NLRB), and Nuclear Regulatory Commission (NRC). Each independent commission is headed by a multimember board appointed by the President with the advice and consent of the Senate. Congress has sought to guarantee the commissions' independence by establishing their governing boards on a bipartisan basis, providing fixed terms of office for board members, and authorizing the President to remove them only for reasons specified by statute.
The executive agency, an example of which is the Environmental Protection Agency, is one whose administrator and top assistants are appointed by the President, to whom they report directly and who may remove them freely. The executive agency lies squarely within the executive branch; its position within the constitutional framework of separation of powers is thus more clearly defined than that of the independent regulatory agencies. The government corporation, an example of which is the Tennessee Valley Authority, is created by statute for a stated purpose and is wholly owned by the government. This model has been used when a project, because of its duration or its required investment, cannot easily be achieved through private development.
Regulatory agencies differ significantly in the range of their powers and their modes of operation. For example, the work of the NLRB is almost exclusively judicial in character. Although it has broad authority under the wagner act and taft-hartley act, the NLRB has chosen to exercise only adjudicatory powers. The Equal Employment Opportunity Commission, on the other hand, has no formal power to adjudicate claims or impose administrative sanctions. The sensitive and highly controversial character of its mission—to carry out the antidiscrimination provisions of Title VII of the civil rights act of 1964—prompted Congress to limit EEOC's authority to "informal methods of conference, conciliation, and persuasion." If these methods fail the alleged victim of discrimination may sue in federal court. Even though EEOC itself may not issue final orders, its guidelines for dealing with patterns of discrimination in employment, together with its field investigations in particular cases, often induce compliance. The result is a significant regulatory effect.
An immense body of administrative law, found in the voluminous Code of Federal Regulations and in a multitude of specialized publications, has been created by these and other administrative agencies.
The development and structure of regulatory agencies have strained the constitutional theory of separation of powers, for the agencies typically blend functions of all three branches of government. Yet the Supreme Court has sought to accommodate the constitutional theory with the needs of effective government, and thus to preserve the constitutional balance underscored by the principle of separation of powers. The constitutional basis for Congress's power to create regulatory agencies is derived from Article I. Section 1 grants "[a]ll legislative powers" to Congress; section 8 enumerates these powers and vests Congress with the additional power to make laws necessary and proper for carrying them into effect. Regulatory agencies have always been regarded as necessary and proper means of achieving the ends of national policy.
Implicit in the theory of separation of powers is the doctrine that delegated authority cannot be redelegated. Under this principle Congress cannot constitutionally invest the executive (or, for that matter, the judiciary) with the power of legislation. How then is it possible to justify the rule-making power conferred on agencies? The Supreme Court's answer is that such authority is permissible if the authorizing statute embodies a policy and provides guidelines to channel administrative action. Of course, within these guidelines agencies exercise considerable discretion. In theory, however, they are not legislating in a constitutional sense when exercising their discretion; they are simply carrying out legislative policies established by Congress.
Reality, however, had not easily converged with theory. Despite its reiteration of the doctrine forbidding delegation, the Supreme Court has consistently allowed "directionless" delegations of legislative authority. Not until the 1930s did the Court actually invalidate congressional statutes for excessive delegation of legislative power. But these precedents soon fell from favor as the Court proceeded to uphold subsequent legislative mandates as vague as those previously nullified. Some delegations have been disturbingly broad. For example, the Federal Communications Commission is to use its licensing power in the "public convenience, interest, or necessity." The Court upheld this "supple instrument" of delegation as being "as concrete as the complicated factors for judgement in such a field" permit. Nevertheless, the doctrine forbidding delegation still lives in theory. As recently as 1974, in National Cable Television v. United States, the Supreme Court construed a federal statute narrowly so as to avoid the implication from a literal reading of the statute that taxing power—clearly a legislative function—had been conferred on the Federal Communications Commission.
The doctrine forbidding legislative delegation has had its corollary in challenges to the constitutionality of regulatory agencies' exercise of judicial functions. The contention is that these functions are inconsistent with Article III's grant of the judicial power to courts. Yet the Supreme Court has upheld the delegation of adjudicatory functions to regulatory agencies, so long as the courts retain power to determine whether the agencies have acted within their legislative mandates.
The obverse of the delegation issue concerns strategies by which Congress may take back authority it has granted. Despite congressional efforts to ensure their independence, regulatory agencies came under criticism of liberals who complained that, instead of regulating in the public interest, the agencies had become the clients of the special interest they were supposed to regulate. More recently, conservatives have attacked regulatory agencies for pervasive bureaucratization, for growing unaccountability, and for disregard of their legislative mandates. The congressional response to these criticisms has taken a number of forms, including attempts to deregulate certain industries and the effort to reserve a power of legislative veto of agency actions.
The legislative veto, adopted by Congress with increasing frequency in the 1970s, when public criticism of regulatory agencies was at its zenith, poses serious constitutional issues. Congress required various executive agencies to report to it in advance of specified kinds of proposed action. Then, if Congress (or, in some cases, one house of Congress) should adopt a resolution of disapproval within a certain time, the proposed action was effectively "vetoed." The Supreme Court held this mechanism unconstitutional in immigration and naturalization service v. chadha (1983), as applied to the one-house veto of a deportation order. First, the Court held, the congressional veto was a legislative act requiring passage by both houses of Congress. Second, and more serious, the congressional veto offended Article II, which requires any legislative act to be presented to the President for his approval before it takes effect.
The President as chief executive is commanded by Article II of the Constitution to "take care that the Laws be faithfully executed." From an early time, Presidents claimed an inherent constitutional power to remove any executive official whom they or their predecessors had appointed. This claim was vindicated in myers v. united states (1926). But in humphrey ' sexecutorv. united states (1935) the Supreme Court refused to apply this theory of inherent power to the removal of a member of an independent agency exercising quasi-legislative and quasi-judicial powers. Distinguishing between a "purely executive" officer and an officer of an independent agency, the Court sustained Congress's authority, when creating regulatory agencies, to fix the terms of commissioners and specify the exclusive grounds for their removal. In Weiner v. United States (1958) this principle was applied to the removal of a member of the War Claims Commission, whose organizing statute specified no grounds for removal. The Court noted the adjudicatory nature of the agency's work, and thus concluded that Congress had not made it part of the executive establishment under the political control of the President. The Supreme Court has recognized that independent agencies cannot exercise their statutory duties fairly or impartially, as Congress intended, unless they are free from executive control.
The combination of investigatory, prosecutorial, and adjudicatory functions within the same regulatory agency has also been the subject of constitutional litigation. In Winthrop v. Larkin (1975), however, the Supreme Court reaffirmed its long-standing view that the mixture of these functions within a single agency or person does not violate due process unless the presumption of honesty and integrity of officers exercising these functions is overcome by evidence of actual bias or prejudgment in a particular case. Even though the separation of these functions within the regulatory context is not constitutionally commanded, legislators have often concluded that the best mix of efficiency and impartiality is maintained when prosecutorial and judicial functions are performed by different officers within an agency.
All regulatory agencies are subject to the constitutional requirement of procedural due process. The right to a hearing must be granted when an agency takes action directly affecting rights and obligations: those affected must be given notice and an opportunity to present their case in a fair hearing. The process due in any particular case depends on the nature of the liberty or property interest involved. If these interests are constitutionally recognized then notice and even a prior hearing may be required before agency action can be taken. Whether the right to counsel, cross-examination, and other trial-type procedures will be required depends on the importance of the private interest at stake when balanced against the government's interest and the risk of erroneous deprivation under an agency's normal operating procedures.
The extent to which agency determinations are subject to judicial review is governed by the Administrative Procedure Act. Generally, administrative action is unreviewable if committed by statute to agency discretion. Courts may, however, set aside even discretionary action when it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Under the act, the courts are to sustain agency findings of fact if they are supported by substantial evidence. Although the definition of "substantial" may differ from court to court, the Supreme Court retains the final say on whether the rule has been properly applied in a given case.
Donald P. Kommers
Davis, Kenneth C. 1969 Discretionary Justice. Baton Rouge: Louisiana State University Press.
Freedman, James O. 1978 Crisis and Legitimacy. Cambridge: At the University Press.
Kohlmeier, Louis M. 1969 The Regulators. New York: Harper & Row.
Redord, Emmett S. 1969 The Regulatory Process. Austin: University of Texas Press.
At the beginning of the twenty-first century, increased levels of terrorist activities and a higher incidence of food-borne illness made regulation and protection of the food supply a worldwide concern. The goal of food regulatory agencies is to ensure that the public food supply is safe from disease caused by infection from human handling or by contamination from chemical or other hazardous substances. Such contamination can occur during all phases of food production, including cultivation, harvesting, processing, packaging, storage, and cooking.
United States Agencies
In the United States, the regulation and safety of the food supply has received attention since the mid-nineteenth century. Today, many of the U.S. federal agencies serve as regulators or advisors for the food supply in the United States and throughout the world. There are four major U.S. federal agencies involved in food regulation and safety.
The U.S. Department of Agriculture (USDA) is the oldest federal agency that monitors the food supply in the United States; it was established in 1862 by President Abraham Lincoln. In its earlier years, the agency worked with farmers, who were the country's main source of food. Today, the mission of the USDA includes a goal that ensures people a safe, affordable, nutritious, and accessible food supply. USDA accomplishes this goal through the administration of a variety of food-related programs, all of which either assist suppliers or protect consumers.
Consumers are protected by USDA programs that regulate and monitor soil, water, and wildlife on privately owned property; drinking water for rural Americans; and meat, poultry, and egg products for all Americans. Federal antihunger efforts, such as the Food Stamp Program, the National School Lunch Program, the School Breakfast Program, and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) also serve a regulatory purpose by providing recipients access to safe food products. Other USDA services include programs for food suppliers, such as small-business owners and farmers, who can receive assistance in growing and merchandising safe foods. The USDA also runs the Food and Nutrition Information Center, which provides information to the public on a variety of topics related to food safety and healthy food choices.
The Food and Drug Administration (FDA) is an operating division of the U.S. Department of Health and Human Services (DHHS). While the responsibility of DHHS is to protect the overall health of Americans, the FDA has a more specialized role in the oversight of food, drugs , and related products. The FDA was established after the passage of the Pure Food and Drugs Act of 1906. This act was the first nationwide consumer protection law, and it made the distribution of misbranded or adulterated foods, drinks, and drugs across state lines illegal. Today, the FDA is mandated by federal law to protect public health by ensuring the safety of the production, processing, packaging, storing, and holding of all domestic and imported foods, except for those products that are under the jurisdiction of the U.S. Department of Agriculture. FDA is also responsible for safeguarding all ingredients used in food products, approving new food additives , monitoring ingredients and foods to see that they are contaminant free, and monitoring dietary supplements, infant formulas, and medical foods for safety. The FDA oversees food labeling and requires that food product labels be informative, truthful, and useful to the consumer. The Hazard Analysis Critical Control Point (HACCP) system, one of the most well-known food safety monitoring programs in use today in the United States, is also sponsored by the FDA.
In July 2003, the FDA submitted a ten-point program to DHHS that would ensure the safety and security of the nation's food supply. Under this program, the FDA will work with the Department of Homeland Security (DHS) to add more staff, develop bioterrorism regulations, assess threats to the food supply, and train food service workers and the public in emergency preparedness and how to respond to a crisis.
Another operating division of DHHS is the Centers for Disease Control and Prevention (CDC). Established in 1946, the CDC collaborates with state agencies, private organizations, and other federal agencies such as the FDA, the Environmental Protection Agency (EPA), and the USDA to provide credible health information, primarily in the area of disease prevention. CDC's Food Safety Initiative Activity focuses solely on the prevention of food-borne illness by improving systems for disease surveillance and out-break response, as well as through research, training, and education.
The Environmental Protection Agency (EPA) is a separate agency dedicated to the regulation of pesticide usage and the establishment of water quality standards for the United States. The agency has been in existence since 1970 and it develops and enforces regulations that implement federal laws written to protect the environment . The agency accomplishes this by collaborating with the states and Native American tribes, which have been given the responsibility for monitoring and enforcing compliance, and by issuing sanctions if the regulations are not followed. The EPA also provides financial assistance to states, nonprofit organizations, educational institutions, and small businesses to support research, education, and public awareness programs. Voluntary efforts, cosponsored by industries, businesses, nonprofit organizations, and state and local governments can also receive assistance from the EPA.
Although not a regulator in the truest sense, the World Health Organization (WHO) establishes policy and makes recommendations regarding the safety of the world food supply through its Food Safety Department (FOS). A primary focus of the FOS is the reduction of the negative impact of food-borne disease worldwide. Recently, a resolution was adopted by WHO to recognize food safety as an essential public health function, and to develop a global strategy to reduce the burden of food-borne diseases. Because the responsibility for food safety is often divided among several agencies with overlapping authority, there have been many challenges in solving the problems of worldwide food-borne disease. To address these challenges, the FOS is developing an integrated production-to-consumption approach to food safety for its 192 member states. The approach is patterned after the FDA-sponsored HACCP program.
Other activities of the FOS include monitoring food, air, and water-supply pollution; observing food manufacturing and processing for the presence of additives and contaminants; conducting research on the safety of genetically modified foods; amassing larger food and supply inventories for countries to access in times of disaster; and assisting with the management of malicious contamination of food for terrorist purposes.
Other international agencies include:
- The Food and Agriculture Organization of the United Nations (FAO)
- The World Health Organization (WHO)
- The Codex Alimentarius Commission
- European Union Food Safety Policy Committee
- The World Food Safety Organization.
In conclusion, various aspects of the U.S. food supply are monitored by the USDA, FDA, CDC, and EPA. These federal agencies collaborate with state and local governments, as well as with nonprofit organizations, private businesses, and individuals to oversee the safety of the food supply for the United States. While each of these agencies also works with foreign countries to assist in the quest for a safe food supply worldwide, the WHO functions in a policymaking capacity for its 192 members, and provides a greater overall international presence in this effort. The importance of securing the safety and security of food for all countries of the world will continue to be of great importance, as commerce becomes more global and more new products are introduced through bioengineering and other means. The regulation and monitoring of the continuum from grower to consumer will require a great deal of collaboration among all countries of the world in order to be successful.
see also Food Safety; Health Claims.
Claire D. Schmelzer
Centers for Disease Control and Prevention. "Food Safety Office." Available from <http://www.cdc.gov/foodsafety>
U.S. Department of Agriculture, National Agriculture Library. "Food and Nutrition Information Center." Available from <http://www.nal.usda.gov/fnic/>
U.S. Department of Health and Human Services. "HHS: What We Do." Available from <http://www.hhs.gov/>
U.S. Environmental Protection Agency. "About EPA." Available from <http://www.epa.gov/>
U.S. Food and Drug Administration (2003). "Progress Report to Secretary Tommy G. Thompson: Ensuring the Safety and Security of the Nation's Food Supply." Available from <http://www.fda.gov/>
U.S. Food and Drug Administration, Center for Food Safety and Applied Nutrition. "Hazard Analysis Critical Control Point." Available from <http://www.cfsan.fda.gov/>
World Health Organization. "Food Safety." Available from <http://www.who.int/foodsafety/en/>
There are large numbers of federal and state agencies in the United States that have been authorized by Congress or state legislatures to implement and enforce environmental laws. As a general matter, environmental regulatory agencies are responsible for establishing maximum allowable levels of pollutants in air, water, and soil to protect human health and the environment, and for developing programs to achieve such levels of protection. Most environmental regulatory programs are carried out through permitting programs under which releases of pollutants are allowed provided they meet established standards or limits, and other conditions imposed by the regulatory agency.
On the federal level, the Environmental Protection Agency (EPA) is the primary regulatory agency responsible for pollution control. It was created in 1970 as an outgrowth of the environmental movement in the United States during the 1960s, although at that time a number of federal environmental programs already existed. These programs were scattered throughout several different federal agencies. The creation of the EPA was an attempt to consolidate these environmental programs under the control of one agency with clear-cut responsibility for environmental protection. The EPA is funded through congressional appropriation; it carries out wide-ranging duties related to environmental protection, including researching the causes and effects of specific environmental problems; regulating air pollution, water pollution, solid and hazardous waste disposal, pesticides and toxic substances; providing oversight of states that have assumed responsibility for federal environmental programs; and enforcing environmental laws.
In addition to federal environmental regulation, virtually every state has an agency responsible for pollution control. Many of these state agencies were established by state legislatures shortly after the creation of the EPA. State environmental agencies may receive their funding from a variety of sources, including legislative appropriation, property taxes, and grants from the EPA and other federal agencies. The extent and type of state regulation can vary widely. Some states, such as California, New Jersey, and Michigan, have very extensive pollution control programs, whereas others have minimal programs. The nature of such programs depends in large part on the kind of environmental issues facing the state and their magnitude, the size of the state, the economy of the state, and the political leanings of state residents. For example, California, a large progressive state with serious air quality problems, has extensive regulatory programs, particularly in the area of air pollution control. One California regulatory agency is the California Air Resources Board, a part of the California Environmental Protection Agency, which develops and implements regulations to reduce emissions from motor vehicles. Some states have all or most of their pollution control responsibilities concentrated in one agency, often called a state Department of Environmental Protection or Department of Environmental Quality. Pollution control responsibilities in other states may be shared by a number of agencies, including public health agencies, natural resources agencies, and fish and wildlife agencies, or in media-specific agencies such as California's Department of Water Resources.
In the case of many EPA regulatory programs, the EPA designs the programs and then delegates their implementation and enforcement to state agencies. In fact, this is true of the majority of federal environmental laws administered by the EPA. Most of the major permitting programs that the EPA oversees, including the Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act, contain specific provisions authorizing it to delegate administration of the programs to those states that have permitting systems which meet the minimum federal criteria. Through such delegation, the EPA limits its role to designing regulatory programs and issuing the rules to carry them out. EPA enforces regulations only in those states that have not adopted programs meeting federal standards. Even when the EPA delegates a program to a state, though, it maintains an oversight role, having the authority to enforce permit requirements and veto state permits.
Outside of the United States, many other developing countries, particularly in the West, have agencies responsible for environmental protection that are very similar in structure and scope to the EPA. For example, Germany, France, and Great Britain all have national environmental agencies with primary responsibility for the regulation of air and water pollution, and public and hazardous waste disposal.
see also Environment Canada; Mexican Secretariat for Natural Resources (La SecretarÍa del Medio Ambiente y Recursos Naturales); U.S. Environmental Protection Agency.
ferrey, steven. (2001). environmental law: examples and explanations, 2nd edition. new york: aspen.
government institutes. (1994). how epa works: a guide to epa organization and functions. rockville, md.
information resource management. (1995/1996). united states environmental protection agency, access epa 220-b-95-004.
lovei, magda, and weiss, charles, jr. (1998). management and institutions in oecd countries: lessons from experience. washington, dc: world bank.
moya, olga l., and fono, andrew l. (2001). federal environmental law: the user's guide, 2nd edition. st. paul, mn: west publishing company.
rodgers, william h., jr. (1994). environmental law, 2nd edition. st. paul, mn: west publishing company.
clay.net environmental professional's homepage. "state pollution control agencies." available from http://www.clay.net/statag.html.
u.s. environmental protection agency web site. available at http://www.epa.gov/html.
Mary Jane Angelo