McGeorge Adjunct Professor Chris Micheli

There are several ways in which the California Legislature can influence the rulemaking activities of these executive branch entities. Primarily the Legislature does this through lawmaking and the budget.

Generally speaking, the authority of California’s agencies and departments to adopt policy through its rulemaking activities is both defined and restricted by state statute. It’s an established principle of administrative law that a state agency cannot exceed its legally prescribed authority to regulate. Now keep in mind that the underlying statute confers either broad or limited powers to the state agencies. Some of the broad rulemaking authority is vested in state agencies such as the Department of Motor Vehicles, the Air Resources Board and the Department of Fair Employment and Housing.

There is also a legislative review of regulations under the Joint Rules of the California Legislature. The California Joint Legislative Rules Committee, as well as the respective Rules Committees of both the Assembly and the Senate, can approve any requests from a legislator to give priority review of a regulation. If such a request is approved, then the Joint Rules Committee must submit any approved requests to the Office of Administrative Law. In addition, under these 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 any standing policy committee in their respective houses, or the Assembly Office of Research or the Senate Office of Research to study any proposed or existing regulation or group of related regulations.

Now, upon receipt of such a study request from a legislator, the Senate Committee on Rules or the Speaker of the Assembly will determine whether a study will be made of the regulation or regulations requested. In reviewing such a request, the Senate Committee on Rules or the Speaker of the Assembly must determine

  1. the cost of making that study,
  2. the potential public benefits that would be derived from the study, and
  3. the scope of such a study.

Under the joint rules, the study may consider among other things, seven different items:

  1. Do the proposed or existing regulation exceed the agency statutory authority?
  2. Does it fail to conform to the legislative intent of the enabling statute?
  3. Does it contradict or duplicate other regulations adopted by federal, state, or local agencies?
  4. Does it involve an excessive delegation of regulatory authority to a particular state agency?
  5. Does it unfairly burden particular elements of the public?
  6. Does it impose social or economic costs that outweigh its intended benefits to the public?
  7. Does it impose unreasonable penalties for violation?

This review must be done in a timely manner, and any concerns must be transmitted to the Senate Committee on Rules, or the Speaker of the Assembly, as well as the relevant state agency that is promulgating the regulation. In the event that a state agency takes a regulatory action that the reviewing entity finds to be unacceptable, then the entity must file a report for publication in the Assembly Daily Journal, or the Senate Daily Journal, indicating the specific reasons why the regulatory action should not have been taken.

You can find a full transcript of today’s podcast here.