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.