Since 2020 state Department’s of Health and other state agencies have passed record-setting amounts of rules.
But when rules passed by unelected state agencies begin to impact your life in a negative way, what options do you have to overturn them?
Well, fortunately, there are quite a few solutions actually.
Below you will learn seven ways to challenge rules made by your state’s agencies.
Let’s jump in!
Limitations of Rulemaking for State Agencies
Despite what many think, Departments of Health and other state agencies do not make laws.
Why? It’s simple, they are not made up of elected officials, so they can’t make law. Instead, they make rules.
Collectively these state agencies are called the bureaucracy. Yes, that is the actual term. In fact, the bureaucracy goes deeper than most realize.
As Nicholas B. Creel, Assistant Professor at Georgia College and State University (GCSU), explains, “This is actually where the term deep state comes from, with bureaucrats operating “deep” within the various state agencies such that they can effectively resist the will of elected officials who are nominally in charge.”
So, if you can’t elect the members of the bureaucracy, how can you hold them accountable?!
Well, there are quite a few methods we will cover in this article. First, you should know the laws and procedures that govern the rulemaking process of the bureaucracy in question.
Method 1: Learn Rulemaking Procedures
While bureaucratic agencies can act with some autonomy. They are strictly limited by state or federal rulemaking procedures. And typically require the direction of a legislative body to create new rules.
As Paul Engel, Founder of The Constitution Study, puts it, “If there is not legislation that authorizes an executive agency to create rules, then the member of that agency that creates and enforces those rules are acting contrary to their commission.”
Step one to challenge these rules. Is to learn the rulemaking procedures the agency is bound by. This will vary state-by-state. But the elements of most rulemaking procedures are similar.
State rulemaking procedures will typically:
- Explain how the agency must notify the public,
- Define a period for public commentary,
- And other limitations on an agencies rulemaking procedures.
Bear in Mind! Emergency rulemaking procedures will likely differ from the standard procedures state agencies are bound by. But we will get to that in a minute.
Here’s the catch, pointing out the mere fact that a state agency broke a rule will typically not result in immediate compliance. Often the only thing that will cause the agency to change its rules is a lawsuit or political pressure. Take Missouri’s Department of Health (MDOS) policies which took two years to be overturned. While the MDOH was in clear violation of the state’s rulemaking procedures, it took a judge’s order to force them to stop.
However, before filing a lawsuit. Consider these other options first.
Method 2: Learn the US and State Constitution
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
-U.S. Supreme Court, Marbury v. Madison
If a state agency’s rule is unconstitutional or unlawful, it is void (but that doesn’t mean they won’t enforce it).
State agency rules are subject to the same constitutional measures as state laws are. So the second method challenging state agencies is to learn both the US Constitution and your state’s specific Constitution.
Doing so can arm you with the language you will need when moving forward with other methods. Such as lobbying the agency itself, your legislature, and ultimately, filing a suit against the agency if all else fails.
Method 3: Lobby The Agency
Now that you know your state’s rulemaking procedures and Constitution. You are better prepared to lobby the state agency itself.
As stated earlier, states typically require a public commentary period for each rule they create. This is a great time to express your feelings on the issue. And invite others to as well.
If I were challenging a rule, I would also call the agency myself and try to converse with agency representatives to see why they are enacting the regulations as they are. You never know what information will come up that you can use to move forward.
The sad reality is that without a sufficient public outcry, it is unlikely that lobbying the agency directly will work. But it is a crucial method to utilize. And doing so will likely help you understand alternative perspectives on the issue you would have never otherwise considered.
In my experience, it is a good idea to take notes of EVERYTHING that is discussed and with who this information was discussed. This will help in the event a lawsuit becomes the only option.
Method 4: Lobby the Legislature
As elected officials, legislatures have authority over bureaucracies.
So one of the key methods to challenging rules is to contact your local representatives and senators. Depending on your state’s rulemaking procedures, they may be able to overturn rules directly, establish a committee to review the rule. Or propose a law that will invalidate the rule directly.
Method 5: Vote in Better Representatives
Here’s the deal, I am no fan of this method. And I will spare you my opinions on the matter.
But this method should not be overlooked. If your legislature fails to uphold the law, then voting them out of office may be an effective means of change.
Method 6: File a Lawsuit
A lawsuit may be the next move if the above methods don’t yield the results you want them to.
As Assistant Professor Creel of GCSU explains, “In order for a member of the public to challenge a rule they think its unconstitutional, they first need to demonstrate what is known as “standing”. In effect, they have to show that they’ve been directly injured by the state’s action before they can legally challenge it.”
Unfortunately, lawsuits may take months or even years. But they may be the only way to ultimately overturn a rule.
Fortunately, depending on the court and the judge overseeing it. You may be able to get an injunction or temporary restraining order to suspend the rules while a court derides their validity.
Method 7: Do Not Comply
Look, this method may have unforeseen consequences on your life. And only you can determine if this method is right for you. Many suggest that this method should not be utilized. Which is a fair argument.
As Assistant Professor Creel puts it: “Ultimately, the courts determine which constitutional it what isn’t, not the public. As such, you are obligated to follow the law until the legal system tells you that the law is invalid. Doing otherwise puts yourself in danger of severe legal consequences.”
That being said, I’m afraid I have to disagree. And it’s no surprise that this method is one most do not bring up. Often because they don’t consider it. Other times, they are afraid that there may be consequences for saying it. But I would assert the People have the final say, not the courts.
While the courts are often tremendous assets in the preservation of liberty. At the end of the day, as the Declaration of Independence tells us, the government derives its ‘just powers from the consent of the governed.’ Therefore, not consenting to an unlawful rule is a lawful course of action.
There are various methods of non-compliance, each with varying degrees of risk. But these are things you will need to consider if you choose not to comply.
As Paul Engel, Founder of The Constitution Study, expands on the point, “If the legislation that authorizes an executive agency to create rules violates the Constitution of their state or the United States, (the Constitution of the United States being the supreme law of the land), then that law is void. Therefore, since people cannot be forced to follow laws, rules, or regulations that are void, it is incumbent upon We the People to ignore them.”
Differences Between Standard and Emergency Rulemaking Procedures
Whichever method or methods you use, you will want to remember that emergency rulemaking procedures differ from the standard procedures in most states. While many of the differences may be minute. They can be helpful in the effectiveness of your challenges.
For example, some states allow for less public notice when it comes to making a new rule under emergency standards. While others strictly limit how long a state agency’s emergency rule can be in place.
These are essential details when it comes to challenging a rule.
The differences between emergency and non-emergency rules will differ state by state. But due to the rushed nature of the rulemaking process for emergency rules. They are more likely to be passed in error.
“The same options are available for challenging both rules made under regular order and emergency procedures.” Assistant Professor Creel explains,” However, the chance of a technical error by the state is probably higher under emergency conditions, making it more likely the public will prevail on those issues.”
Challenging State Agency Rules at the End of the Day
These seven methods may help you overcome unlawful or otherwise unconstitutional rules passed by your state’s agencies. Any of these methods alone is limited on their own. But there are sufficient means to challenge your state agency’s laws between them.
It’s true, state officials elected and unelected are bound to the Law and Constitution. Unfortunately, many officials do not adequately understand what that means. Additionally, there are areas where there may be uncertainties. And the only way to clarify what the law is is to stand up and make your stance known.
However, each method comes with its risks. And ultimately, you will have to determine what path is for you. But your follow-through and determination may change the future for further generations. And that is priceless!
I’ll leave you with these words from Alexander Hamilton from the Federalist Paper #78:
“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.”
“To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”
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