Regulators Write the Rules They Later Enforce

The modern agency does three jobs that a constitutional purist would keep apart. It writes rules, it investigates violations of those rules, and in many cases it decides the resulting cases in its own tribunals.

This was a deliberate design. Expertise is expensive and splitting the functions across institutions would require duplicating it three times, in fields where the number of qualified people is small.

The cost is a structural absence of second opinions. An agency that concludes an interpretation is correct will apply it in enforcement and uphold it on review, and the first genuinely independent look often comes years later in a federal court, by which time the interpretation has shaped an industry.

The proposals to separate the functions are old and have never quite survived contact with the budget. Cheaper fixes exist: publishing dissenting staff analyses, requiring adjudicators to be shielded from the enforcement chain, and setting deadlines after which an unreviewed interpretation lapses. None is exciting, and each would put a little friction back where it was removed.

The combination looks alarming stated abstractly and is defended by everyone who has tried to separate it. That tension is the actual subject, and it is not resolved by pointing out that the functions are combined.

The design rationale is expertise. A field with a few hundred qualified specialists cannot staff three independent institutions, and splitting them would produce three understaffed bodies rather than one competent one.

The law does not treat the functions as identical, which is often overlooked. The rulemaking procedure and the adjudication procedure are separate sections with different requirements, and the second imports protections the first does not have.

Adjudication brings a presiding officer, a right to submit evidence, and constraints on who may advise the decision maker. Those are real separations operating inside a single agency.

The internal wall is the mechanism, and its weakness is that it is internal. An agency that has taken a position in a rule has an institutional view before any enforcement begins, and the wall separates people rather than premises.

So the missing element is not procedure. It is the second opinion, and the specific thing absent is anyone whose professional standing does not depend on the agency having been right.

That absence compounds through the accumulated rules, because an interpretation applied consistently for years acquires the weight of settled practice without ever having been tested by someone with an interest in testing it.

Judicial review is the external check and it operates late, narrowly and expensively. It reaches the cases somebody could afford to bring, which is a biased sample of the decisions being made.

The body that studies this has produced recommendations on it for decades, most of them procedural and cheap, and adoption has been uneven for reasons that are budgetary rather than principled.

The cheap fixes are worth naming because they are available now. Publish the staff analysis that dissented. Require enforcement to cite the specific rule text rather than a general interpretation. Rotate adjudicators between agencies.

None of that separates the functions and none of it requires new institutions. Each introduces a small amount of friction at the point where an agency is most likely to be confidently wrong.

The honest position is that the combination is probably necessary and definitely under-checked, and that the people most convinced it works are the people inside it, which is the condition the second opinion exists to correct.

The comparison usually offered is a court, and it flatters the court in a way that does not survive examination. Judges also decide questions on which they have taken prior positions, and the protection is that somebody else can review them.

That is the whole of the distinction and it is sufficient. The problem with combining functions is not the combination, it is the absence of anyone outside the building whose job is to disagree early enough to matter.