Essay Read By Constituting America Founder, Actress Janine Turner
“Congress shall make no law… abridging the freedom… to petition the Government for a redress of grievances.” – United States Constitution, Amendment 1
A key element in America’s quest for independence was the ire that certain colonists felt at being taxed without representation (an overly simplified view of decades of frustration at a variety of policies imposed by the British Crown on Colonial America without the consent of the citizens of the colonies). Part and parcel of this was the difficulty the citizens had in presenting those grievances to the crown (or parliament), and the perception that those who did voice concerns or opposition were singled out for punishment by the government.
So as the Constitution was being drafted, and further constraints were being placed on the power of government via the Bill of Rights, the founders included language in the First Amendment ensuring that citizens would retain a right to so petition the government when they were aggrieved—with a corresponding assurance found in the Fifth Amendment, that when such substantive petitioning is made, “due process” is accorded to the petitioner i.e., that a fair and just process is made available to the person or persons petitioning.
When most people consider this, they think about the right of individuals to advocate or otherwise speak their minds before legislators, i.e., to offer their opinions on legislation. But in an era in which policy is increasingly being delegated to the Executive Branch, it is important to examine how this right, or civic duty, is protected within the context of the “administrative” state.
When Congress passes a law, it is then up to the Executive Branch to interpret and enforce that law, to “administer” it, in other words, and thus the “administrative” state. The more vague that law might be (and sometimes not so vague), the greater leeway an agency has to interpret that law.
For example, Congress passes the Clean Water Act in 1972. In that law, they make it illegal to pollute a navigable water of the United States. Because Congress failed to define words or phrases like “pollute” or “navigable” or “water of the United States,” they left it up to the Executive Branch to define them.
The right to petition then plays a singular role in this. The agency presents its proposal for how to define terms or, more broadly, how they plan on interpreting and enforcing any piece of legislation, and it then opens a process whereby the public can comment on their proposals.
This process is government by a law known as the “Administrative Procedure Act” (APA). The APA was passed by Congress in 1946 in order to standardize the petitioning/commenting process across the federal executive branch. Prior to that point, each agency had the discretion to create its own process, something that could make overly complicated the ability of citizens to exercise their right to petition for redress.
Now, with few exceptions, the process by which someone can “comment” on a “rulemaking” is the same regardless of whether someone is filing that comment with the Occupational Safety and Health Administration (OSHA), the Department of Health and Human Services (HHS) or the Department of the Interior. A “rulemaking” is the standard term whereby an agency goes through the process or creating or amending the regulations that have been created out of congressional legislation. A “comment” is just that, the opinion filed by a person or group regarding that regulatory proposal.
At its most basic level, the process works this way: either Congress passes a new law, or amends a law, or the agency wants to make changes to existing policies, and they announce this in a daily publication called The Federal Register. They offer their proposal in something called a “Notice of Proposed Rulemaking” or, less frequently, an even earlier step called an “Advanced Notice of Proposed Rulemaking,” and tells the public how they can comment on those proposals.
Anyone can file a comment—and it has never been easier to do so. Most agencies utilize an online portal called Regulations.Gov to both announce proposals and solicit for comments, and comments can be submitted online with a matter of clicks.
It is a system that the founding fathers would have enthusiastically applauded. Though many would have been horrified at the concentration of power in the Executive Branch, the idea that any citizen could, with the touch of a button, voice their substantive concern about a policy proposal would have heartened them at the same time. They just would have been concerned that not more people were aware of this.
As part of the APA, agencies are required to answer such “petitions” (when they are substantive) in the publication of their “final rule” i.e., the finalized regulatory policy—either demonstrating where they have made changes to the proposal in accordance with those substantive comments, or explaining why they didn’t make such changes. Failure to do so opens the regulation to court challenges, on the grounds that the new rule is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”
Even better, the APA doesn’t require that the citizenry wait until the agency makes a regulatory proposal in order to have changes to a rule made. Another aspect of the manifestation of the right to petition for the redress of grievances within the APA is the right to petition a regulatory agency to open up a rulemaking—again, with the agency being required to respond if they decide to not go through a new rulemaking process.
While the APA’s rulemaking process applies to nearly all agencies, agencies within the national security and defense spheres are generally recognized to be exempt, though some will engage in this “notice and comment” process when they have policy changes that they know will be controversial or otherwise of tremendous interest to the public. Likewise, transactional decisionmaking and contracting are not open to this APA’s process (though citizens always have the right to comment on such issues with those agencies).
What is worth noting is that the deliberative process of the APA can be frustrating, especially to policymakers, and the citizenry needs to be on guard for when agencies attempt to sidestep the APA. Increasingly, agencies are turning to what they claim are quasi-rulemakings—smaller proceedings that these agencies claim are not subject to the full APA notice-and-comment process. These agencies create guidance documents and interpretation letters purporting to carry the full force of regulatory law, but aren’t subject to the full vetting that a rulemaking allows.
The Competitive Enterprise Institute refers to such activity as “regulatory dark matter”—and while in January of 2017 the President created an executive order to substantially rein in regulatory dark matter, the following administration undid that executive order almost immediately upon taking office in 2021.
Thankfully, Congress is becoming ever more aware of the problem of regulatory dark matter, and is working to hold the executive branch accountable.
In the end, given the size and scope of the modern administrative state in the U.S., the notice and comment process under the APA is of vital importance, and emblematic of the enduring importance of the right, or civic duty, to petition our government for a redress of grievances.
Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.
A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.
Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.
He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.