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Executive Branch

The executive branch of U.S. government is responsible for executing or implementing the statutes and programs enacted by the legislative branch.

 

Executive Branch

  • The executive branch of government is led by the president at the federal level (governors at the state level). The executive branch of government also consists of the numerous government departments and agencies we often hear mentioned in our conversations.
  • The executive branch executes (implements) the statutes that the legislative branch has enacted. Article V, Section 7 of North Dakota Constitution states "The governor is the chief executive of the state. The governor shall have the responsibility to see that the state's business is well administered and that its laws are faithfully executed."
  • The agencies of the executive branch set forth (promulgates) and enforce regulations that have the force of law; regulations add details to the broad concepts that the legislative branch described in the statutes. The legislative branch may not have the expertise nor the time to set forth all the details needed to implement a policy; nor may the legislative branch want to develop such a structured approach to address social needs.  For this reason, the Constitution empowers the executive branch to create the details (the regulations) as to how a program will be implemented. Certainly, these details have to be consistent with the goals set forth by the legislature in the underlying statute.
  • A web site prepared by a federal agency that briefly explains statutes and regulations.

 

  • The general procedure a federal agency will follow when promulgating a regulation:
    • Publish "Advance notice of proposed rulemaking; invitation to comment" (optional); published in Federal Register.
    • Publish the proposed regulation/rule in the Federal Register.
    • Allow time for comment and public hearing (opportunity for concerned or interested persons or groups to comment on the proposed regulation).
    • Review and refine the proposed regulation based on the comments received during the "comment period,"
    • Publish the final regulation in Federal Register.
  • Visit Regulations.gov at http://www.regulations.gov/#!hometo search for proposed regulations that are currently open for public comment.

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  • Examples of the process of promulgating federal regulations.
  • "The Transportation Department proposed Thursday that airlines be required to carve out more space near emergency exits... The proposed rule would give airlines the choice of removing the seat next to the window exit or expanding the space between the rows at the window exits... But Rep. Barbara Boxer ... said the FAA action comes "far too late for far too many lives..." She said the FAA acted only days before a hearing of her House Government Operations transportation subcommittee was scheduled to examine FAA's alleged footdragging on the issue. "It is evident that the FAA acted because the world was about to learn of its shocking behavior..." The FAA proposal calls for a comment period in which the proposal could be altered." (from an AP article that appeared in The Forum several years ago). This example also illustrates how the legislative branch may react if it feels the executive branch is not implementing a statute as intended by the legislative branch.

     

    "... cheese makers have asked the Agriculture Department to change its standards to allow for smaller holes -- or "eyes" -- in Grade A Swiss. Although the standards are technically voluntary, they are used throughout the industry to ensure consistency and determine pricing. While it may seem trivial to some consumers, ... it is a significant issue for cheese makers. The department is taking comments on the cheese standards through Monday." (from an AP article that appeared in The Forum, September 2000).

     

    Another example of implementing a Congressional mandate -- USDA and country of origin labeling.

Required Reading: Example of interaction between a Congressional statute and an agency regulation

 

  • Procedure for North Dakota agencies to follow when promulgating a state regulation -- N.D.C.C. §28-32-10.

 

Regulations cannot conflict with the Constitution or the underlying statute that serves as the foundation for the regulation. The executive branch of government can do no more in implementing a program than the legislative branch authorizes it to do.  Nor can the executive branch ignore the activities that the legislative branch has mandated. The following list illustrates how the North Dakota legislature mandated some expectations, while leaving other directions to the discretion of the executive agency.

    Example -- N.D.C.C. chapter 23-33 GROUND WATER PROTECTION; note the legislature imposes certain requirements (e.g., "shall" in §23-33-02) but grants the department discretion on other points (e.g., "may" in §23-33-04).

    • 23-33-01. Degradation prevention program - Maintenance of waters. This chapter establishes a degradation prevention program for the purpose of protecting ground water resources ...
    • 23-33-02. Administration of chapter. The state department of health shall administer this chapter.
    • 23-33-03. Education program. The department, the commissioner, and the North Dakota state university extension service and North Dakota agricultural experiment station shall cooperate with other state and federal agencies on the development of a ground water protection education program.
    • 23-33-04. Chemical use data and confidentiality requirement. The department may require chemical use data from product registrants ...
    • 23-33-05. Ground water standards. The department shall establish standards for compounds in ground water ...
    • 23-33-06. Ground water quality monitoring. The department shall conduct ground water quality monitoring activities ...
    • 23-33-08. Access for ground water monitoring. The department may request landowners or operators to allow access for monitoring of ground water and of soils ...
    • 23-33-09. Pollution prevention criteria. The commissioner, in cooperation with the department, North Dakota state university extension service, and the North Dakota agricultural experiment station, may develop pollution prevention criteria for areas utilized for mixing and storing of agricultural chemicals at the retail and end use levels.
    • 23-33-10. Wellhead protection program. The department in cooperation with the state engineer and state geologist shall assist in implementing a public water supply wellhead protection program ...
    • 23-33-11. Rules. The department, with the approval of the commissioner and the state engineer, shall adopt rules necessary for implementation of this chapter.

    This list of statutory excerpts is intended to illustrate how the legislative branch directs the executive branch in implementing the statutory laws enacted by the legislature.

 

For a brief description of executive orders, see Relyea Harold. Presidential Directives:  Background and Overview.  CRS Report for Congress, Congressional Research Service, The Library of Congress, Updated April 23, 2007 at http://www.fas.org/irp/crs/98-611.pdf

  • For several years (e.g., 2013-2014), President Obama has been criticized as overusing executive orders to circumvent Congress.  The executive branch replies that executive orders is the only way for it to make any changes when Congress has been "slow" in enacting the desired underlying statutes.  Usually executive orders have been a "non-issue" within the U.S. federal government, but their recent use by President Obama has brought their use into the public eye and has reminded all of us of the respective roles of the branches of government.

 

Closing Thoughts

  • The executive branch of government is responsible for implement or executing the programs created by the legislative branch when it (the legislative branch) sets public policy by enacting statutes.
  • The executive branch of government promulgates regulations to provide details as to how it (the executive branch) will implement the legislative statute.
  • The regulations of the executive branch must be consistent with the Constitution and the authorizing statutes.

 

 

Email David.Saxowsky@ndsu.edu

This material is intended for educational purposes only. It is not a substitute for competent legal counsel. Seek appropriate professional advice for answers to your specific questions.

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