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    May 28, 2020 | 8:00 AM

    Government 101: How Policies Are Created

    Yesterday, we set the stage for today’s discussion by defining key terms related to understanding what a policy itself is and who needs to adopt the policy before it can be enforced.

    But how exactly is public policy created, anyway?

    Well, that depends on the type of policy it is. So let’s jump right in!

    Legislation

    Legislation is created by the Legislative Branch – go figure!

    Members of Congress introduce bills and resolutions. For a step-by-step rundown on how a bill becomes a law, check out ye olde Schoolhouse Rock.

    Bills are the most common type of legislation. They “deal with domestic and foreign issues and programs, and they appropriate money to various government agencies and programs.”

    A few examples of important bills Congress has created and passed that you may already be familiar with include:

    • H.R. 7260 (1935): The Social Security Act of 1935 – This bill established a system of federal old-age benefits and created grants to states to make adequate provisions for certain groups. The last section of the bill required the Treasury and Labor departments to create rules and regulations to carry out the act.
    • H.R. 7152 (1964): The Civil Rights Act of 1964 – This bill ended segregation in public places and banned discrimination on the basis of race, color, religion, sex, or national origin.

    Aside from bills, Congress also writes resolutions. There are three types of resolutions: concurrent, joint, and simple.

    A concurrent resolution is “legislation that relates to the operations of Congress or express the collective opinion of both chambers on public policy issues.”

    H.Con.Res.101 (2018) is one example. It provided for a joint session of Congress on January 30, 2019 to receive a message from the president. Put more simply, this concurrent resolution allowed for the January 30, 2019 State of the Union address.

    A joint resolution is “legislation considered to have the same effect as a bill and requires the approval of the president.” Joint resolutions can be used to propose amendments to the Constitution.

    Joint resolutions are generally used for continuing or emergency appropriations. For example, H.J.Res.28 (2019), passed January 25, 2019, provided continuing Fiscal Year 2019 appropriations to several federal agencies through February 15, 2019 and ended the partial government shut down that began on December 21, 2018.

    A simple resolution is “legislation that relates to the operations of a single chamber or expresses the collective opinion of that chamber on public policy issues.”

    A simple resolution can be as innocuous as S.Res.334 (2015), which passed the Senate in December 2015 and congratulated the Pennsylvania State University women’s soccer team for winning the 2015 NCAA soccer championship.

    >> Learn more: What Is Public Policy <<

    Regulation

    Regulation is created by Executive Branch agencies and departments. As previously mentioned, regulations can only be created by executive agencies/departments when Congress gives them the authority to do so via legislation. That is not to say that each time an executive agency develops a regulation it’s a result of newly passed legislation. That is sometimes the case, but executive agencies can use what is called “existing authority” to create new regulations.

    “Existing authority” just means that Congress has passed legislation in the past that allows an agency to develop or update a regulation.

    The regulatory process is as follows:

    First step: Propose a regulation and receiving public comment

    An agency proposes a regulation (known as a Notice of Proposed Rulemaking), which is published to the Federal Register.

    During the comment period (a set period of time that could be 30 days, 60 days, and sometimes 120 days), the public can consider the proposed regulation and make comments on the proposal. Often, an agency will hold a public hearing or multiple hearings to gather more input from communities that may be impacted by a regulation.

    Next step: Republish sections for additional public comment, if necessary

    If an agency decides to make significant changes to a proposed regulation as a result of public comments, they may republish sections or a whole regulation for additional public comment.

    Last step: Finalize rulemaking

    After the end of the comment period (or comment periods), the agency considers the comments made by the public in writing the final rule/regulation.

    Final rules are then published in the Federal Register.          

    Here’s an example of the policy creation part of the regulatory process:

    • First step: In December 1972, the Federal Trade Commission, which serves to protect consumers and promote competition, published for public comment proposed Guides Concerning the Use of Endorsements and Testimonials in Advertising. These Guides were designed to assist businesses in following the requirements of Section 5 of the Federal Trade Commission Act, which established requirements for endorsements and testimonials in advertising.
    • Next step: After receiving initial comment, the FTC finalized three sections of the Guides and republished three others, in modified form, for further comment in May 1975.
    • Last step: The republished sections were finalized and one of the initially finalized sections was modified in January 1980, completing the rulemaking. Note: not all regulations take this long to finalize!

    Executive Orders

    There are almost no legally enforceable procedural requirements that the president must satisfy before issuing or repealing an executive order – so the creation part of the process is pretty simple: write and sign the order.           

    Executive orders vary greatly in subject, impact, and much more. Here are two examples of notable executive orders:

    • In 1948, President Truman issued Executive Order 9981, which declared that “there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin.” This order led to the desegregation of the US military.
    • In 1961, President Kennedy issued Executive Order 10924, which established the Peace Corps within the Department of State.

    Key Takeaways

    • Bills and resolutions are voted on by the US Congress.
    • Regulations are written by Executive Branch agencies, and proceed through a regulatory process that includes public comment before being finalized.
    • Executive orders come directly from the president and there are almost no procedural requirements for their enactment.

    What You Can Do

    It’s simple: your vote is your voice. And it’s time to stand up for the future you want for your family, your community, and yourself.

    Embrace the challenge of taking action today that defines tomorrow. Get off the bench this November and #TurnOutForTomorrow.

    Click here to learn more.

    Be sure to check back tomorrow for part three of our policy explainer series, which will describe how policy is enforced – and who does the enforcing.

    Before You Go

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