The Politics Pages

The United States Constitution, The United States Code, and Related Citations for Regulations and Rulemaking

Why a reference?

Good question. It seems to me that few people understand the structure of law in this country (Federal law in particular). Where do laws come from? (We all know about the Congress and the separation of powers, "Checks and Balances," and all of that other "stuff" we studied in school, but really: from where?) And what is the difference between a law and a regulation? And what is that about "rules and regulations" (there's a difference between a rule and a regulation?).

A hierarchy: The Constitution is First

Yes, at the top of the hierarchy of law is The United States Constitution (here linked at The National Archives), which lays-out the structure of the government, explcitly and implictly enumerates rights of the people, and provides the framework for the function of the government.

Government as framed in the Constitution

The United States Federal Government has three branches:

• the Legislature branch, to which is given the power to make laws;
• the Executive branch, headed by the President, to which is given power to manage and enforce the laws; and
• the Judiciary, which reviews the laws and their execution.

The work of the Legislature, the laws themselves, may be found first in the "Statutes at Large," which are the laws as passed, and then in the United States Code (USC), which are the codified body of laws.

The way the Executive conducts these laws is laid-out in the body of Federal regulations, the Code of Federal Regulations (CFR). Becoming a regulation requires several steps, including publication in the Federal Register of a "Notice of Proposed Rulemaking." This is followed by a comment period, and ultimately the new rule is published and becomes part of the CFR).

Questions on the laws may be decided by the Federal Judiciary, which may rule on interpretation of the law or on the constitutionality of the law.

A mirror of this process takes place at the state level.

The relevant elements of the Constitution with respect to the functions of the Federal Government.

The Essential Steps of Laws and Regulations

The process starts in Congress:

1. Legislation (the "bill") is passed by Congress, and
2. The bill goes to the President; then,
   • If the President signs and dates the bill, it becomes law; or,
   • If Congress is in session, and the President does not sign the bill within 10 days, the bill becomes law without his/her signature.
   • or
   • The President may "veto" the entire bill (no such thing as the "line-item" veto at the Federal level [the only item ever "line-item vetoed" at the Federal level was the SR-71 spy plane, a veto ultimately overturned by the Supreme Court but too late to save the already shut-down program]); then,
   • The bill may go back to Congress for a second vote, in which it must get a two-thirds majority of votes in each chamber in order to become law (without the President's signature).
   • or
   • If Congress adjourns within 10 days of giving the bill to the president, and he does not sign it, the bill dies, which is called a "pocket veto."
3. Assuming enactment into law by one of the above means,
   • The law is now the enabling legislation that forms basis for action by the Executive branch.
   • The Executive branch is now obligated to implement the law through regulations codified in the Code of Federal Regulations (CFR) and to enforce those regulations.

So, how does this work in the real world?

Here are some examples of how this legislative to executive hierarchy works, going from the law passed by the Congress, to the law's codification in the United States Code, to the Executive Branch's implementation of the law through regulations codified in the Code of Federal Regulations:

• The Older Americans Act (OAA)
• The Federal Aviation Administration (FAA)
• The Federal Railroad Administration (FRA)
• The Federal Communications Commission (FCC)

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