Regulatory and Prohibitory Laws


Ajit Kumar AJIT KUMARWISDOM IAS, New Delhi.

                              Regulatory and Prohibitory Laws
Regulatory Law
 
Regulatory Law deals with procedures established by federal, state, and local administrative agencies, as opposed to laws created by the legislature (statutory laws) or by court decisions (case law). Regulations can relate to a large array of executive branch activities, such as applications for licenses, oversight of environmental laws, and administration of social services like welfare, just to name a few.
 
Functions of Administrative Law
 
Also known as administrative law, regulatory laws can include everything from rulemaking to adjudication and enforcement. In other words, administrative laws often relate to functions akin to all three branches of government (i.e., legislative, judicial, and executive), but all of them flow from agencies that are considered to be a part of the executive branch.
 
To demonstrate how regulatory law is often like three branches of government in one, consider how administrative laws usually come into being:
 
1. The legislative branch passes a law authorizing the creation of a new executive branch agency to enforce a set of laws (for example, the Environmental Protection Agency in order to enforce certain environmental clean up and preservation laws).
 
2. The statute authorizes the agency to pass regulations to meet the goals of its mandate and to enforce its rules. Thus the legislative rulemaking authority is delegated, in part, to the administrative agency.
 
3. The agency enacts regulations (sometimes they require legislative approval, sometimes they do not), then begins to enforce those rules (e.g., through fining or arrests). The enforcement of laws is a traditionally executive function.
 
4. The agency may also have procedures for hearings, and the results of those proceedings can become precedent on agency policies. These hearings are akin to the trial procedures for the judicial branch.
 
While administrative agencies are still a part of the executive branch and are still checked by the other two branches of government, their regulations and enforcement schema often resemble their own subsystem of government, inclusive of functions for all three branches.
 
Consequently, when discussing any law that may be administered by an agency, it is important to look not just to the statutory law or the case law, but also to any regulatory rules and decisions related to that matter. Failing to do so may amount to overlooking an enormous portion of the body of law affecting that topic.
 
 
Prohibitory laws 
 
Prohibitory laws are mandatory laws that imposes duty to refrain from doing a forbidden act. Generally, they use the phrases “shall not,”  “must not,” or “may not.”
 
Acts contrary to prohibitory laws are void, unless there is an exception in the law.
 
How are Prohibitions and Regulations similar?
 
• Prohibitions and regulations are similar in that they both try to specify and organize what that authorizing body feels is appropriate behavior. In this sense, we can think of laws and regulations as rules that are established by the federal, state, or local government or their appropriating agency. Often, Regulations are written to implement the specifics of a particular law. (e.g. licensing laws and licensing regulations; Mental Health Parity laws, and their regulations)
 
• Prohibitions and regulations, under statute, have to hold public hearings open to anyone interested in testifying for public comment before making decisions about adopting, changing or eliminating a law or regulation.
 
• Prohibitions and regulations are also enforced to the full authority of the law. If you were to violate a law or regulation, there may be penalties up to or including imprisonment or fines.
 
How are laws and regulations different?
• Prohibitions go through the bill process before becoming established as a law. A bill has to be written, sponsored by a legislator, debated and passed through both the House of Representatives and the Senate after various committee and budget hearings before going to the Executive to be signed into law.
 
A regulation is created by a governmental agency, often to actually implement a given law, and does not have to go through the bill process described above. With regulations, an agency holds a public hearing and after that hearing makes a decision on either adopting, changing or rejecting the regulation.
 
• Prohibitions are also rules that govern everyone equally, while regulations only effect those who deal directly with the agency who is enforcing them.




Saturday, 23rd Nov 2019, 08:30:31 AM

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