An Additional Role for Legislators in Agency Rulemaking

Chris Micheli

Attorney and Lobbyist at the Sacramento government relations firm of Aprea & Micheli, Inc.


California’s Legislature should give consideration to playing a greater role in regulations that are used to implement and interpret the statutes that the Assembly and Senate write. This would also be appropriate in light of their efforts to expand oversight of administrative agencies.

The State of California has over 200 agencies, departments, boards, and commissions that can make public policy via their authority to adopt regulations, often referred to as their rule-making or quasi-legislative authority.  There is a lengthy list of these state agencies that have adopted regulations which can be found on the website of California’s Office of Administrative Law (OAL).  OAL’s website also provides direct access to the California Code of Regulations (CCR), which is organized under 28 subject matter titles.

Under existing law, there are several ways for the Legislature to influence the rule-making activities of state executive branch agencies, primarily through the lawmaking and budgetary processes. For example, the Legislature can adopt statutory changes to expand or limit a specific state agency’s authority to adopt regulations, or the Legislature can utilize the “power of the purse strings” through the budget process to influence a state agency’s rule-making actions.

In addition, California law provides a unique role for the Legislature to influence the quasi-legislative efforts of the executive branch. Under the Joint Rules of the California Legislature, the Joint Rules Committee, as well as the respective Rules Committees of both the Assembly and Senate, may approve any request for a priority review of a regulation pursuant to Section 11349.7 of the Government Code. If such a request is approved, the Joint Rules Committee must submit any approved requests to the Office of Administrative Law.

Under the Joint Rules, any Member of the Senate may request the Senate Committee on Rules, and any Member of the Assembly may request the Speaker of the Assembly, to direct a standing policy committee of their respective houses or the Office of Research of their respective house to study any proposed or existing regulation or group of related regulations.

However, this role is simply one of study and review. Instead, the California Legislature should be given similar authority as exists at the federal level under the Congressional Review Act. After a federal agency adopts a regulation, it does not mean that the regulation will take or remain in effect. Instead, there is a unique tool that can be utilized at the federal level to prevent or undo regulations.

Similar to the Congressional Review Act, which was passed by Congress in 1996, California should have a mechanism for blocking significant regulations from taking effect or remaining on the books. If California adopted a similar law, before any new regulation could take effect, all state agencies and departments would be required to submit to the Legislature a copy of a final regulation along with a detailed report why the regulation needs to be adopted.

This would be applicable to significant regulations (Congress defines those as impacting the economy in excess of a specified amount) and would prohibit them from taking effect until 60 calendar days after the regulation was submitted to the Legislature. This would occur prior to the regulation’s submission to the Office of Administrative Law. Minor regulations, based upon a definition to be determined, would take effect as under current law.

Once submitted to the Legislature, they would have 60 to 90 legislative days to consider the regulation. The appropriate policy committees in both the Assembly and the Senate would be required to consider the regulation and hold a public hearing at which the agency promulgating the regulation, as well as members of the public, would appear and present the arguments for and against adopting the regulation.

During this review period, the Legislature could adopt a resolution of disapproval. A majority vote of each house would be required to pass the resolution. If both houses of the Legislature pass a disapproval resolution, then the regulation would not be adopted and the state agency or department would be prohibited from issuing a regulation in “substantially the same form” as the disapproved regulation.

Of note is that the federal CRA prohibits judicial review of any “determination, finding, action, or omission” made pursuant to the CRA. The CRA has only been successfully invoked once, when it was used to overturn the proposed ergonomics rule that the federal OSHA attempted to adopt. During President Obama’s tenure, Congress has submitted five joint resolutions of disapproval, but each one has been vetoed.

Chris Micheli is an attorney and legislative advocate at the Sacramento governmental relations firm of Aprea & Micheli, Inc. He can be contacted at 916-448-3075 or cmicheli@apreamicheli.com. He serves as an Adjunct Professor at McGeorge School of Law.

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