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    May 29, 2020 | 8:00 AM

    Government 101: Who Enforces an Adopted Policy?

    We’ve discussed what a policy is and how it comes to be, so now it’s time for the final piece of the puzzle: Who enforces a policy?

    That one is easy enough: The Executive Branch is the primary entity through which policies are enacted and enforced. The president, vice president, Cabinet, and most federal agencies enforce policy.

    The Cabinet and executive agencies engage in the day-to-day enforcement of policies, while the president serves in more of a managerial role. The president establishes a vision for how executive agencies will enforce laws and set priorities, and selects the department heads that will oversee that vision. It is the federal employees at those executive agencies, however, that do the actual enforcement work.

    Enforcement Process

    The process by which executive agencies create and enforce regulations to administer laws is governed by the Administrative Procedure Act (APA) – which, when passed in 1946, established uniform procedures for rulemaking.

    The enforcement part of the regulatory process begins after a policy is considered “in effect” and has been codified in the Code of Federal Regulations.

    >> Learn more: What Is Public Policy? <<

    The phase that follows is called the compliance, interpretation, and review phase. In this phase, agencies may create additional materials (like interpretive rules or policy statements) that provide clarity on the impact of a regulation on individuals and industries. These materials cannot set new legal standards or impose new requirements.

    Once a regulation is in effect and made clear to impacted industries and individuals, agencies can begin enforcement. Different agencies have different methods and strategies for enforcement, so it’s easiest to explain with an example.

    The Environmental Protection Agency (EPA) has a robust enforcement and compliance plan. Enforcing environmental laws is central to EPA’s mission, and compliance monitoring is critical to that enforcement.

    Step one in EPA’s enforcement process is compliance monitoring. Made plain: compliance monitoring is EPA keeping track of whether industry is following environmental laws.

    Step two in EPA’s enforcement process is enforcement action. EPA is able to actually enforce environmental laws after evaluating compliance and identifying violations of the law. The agency has three types of enforcement actions:

    1. Civil administrative actions – These are actions taken by EPA or a state under its own authority. They include things like a notice of violation or an order (with or without penalties) directing an entity to come into compliance.

    2. Civil judicial actions – These are formal lawsuits filed in court when entities have failed to comply with regulatory requirements, comply with an administrative order, or pay EPA the costs for cleaning up a Superfund site.

    3. Criminal actions – These occur when EPA or a state pursue criminal, rather than civil, charges against an entity for the most serious violations, those that are willful or knowingly committed. Convictions in this case can result in fines or imprisonment.

    Enforcement can differ by agency, but fines, public disclosure of violations, and legal action are common enforcement tools.

    But They Can Choose Not to Enforce an Existing Policy too

    Since the Executive Branch enacts and enforces policy, an administration has several tools through which it can choose to not enforce or reverse an existing policy too.

    Executive orders are a key way for administrations to make policy changes without going through Congress, so they can be tools to weaken enforcement of or change existing policy.

    Sometimes this comes in the form of reversing executive orders from the previous administration. For example, after taking office in January 2009, President Obama issued an executive order (EO 13496), titled “Notification of Employee Rights Under Federal Labor Laws,” which revoked EO 13201 issued by President George W. Bush in 2001 and created new requirements.

    But an administration can also set priorities that, to the extent that it is legal, mean a policy could effectively not be enforced, or be weakly enforced.

    A clear example of this is the Obama Administration’s approach to medical marijuana prosecutions. In October 2009, the Justice Department sent a memo to federal prosecutors in the 14 states that had, at the time, made some allowance for the use of medical marijuana, saying that the department would not prioritize prosecution of patients and distributors of medical marijuana who were in clear compliance with state laws.

    >> Learn more: How Policies Are Created <<

    It was the stance of the administration’s Department of Justice that its resources could be better used pursuing prosecution of other crimes, which effectively meant weak or no enforcement of some federal marijuana laws, though they maintained a commitment to prosecuting drug traffickers and those using medical marijuana as a cover for other illegal activity.

    In this example, President Obama did not issue an executive order, but determined with his Justice Department what crimes would be prioritized for prosecution. This helps illustrate how the Executive Branch can change some policies just through priority setting.

    Overall, the president has the power to shape the work of executive agencies in several ways and therefore can have a lot of influence on US public policy. At the same time, though, legislation and regulations are harder to reverse than executive orders and other presidential directives. So in terms of long-term influence on public policy, laws and regulations tend to have greater impact than executive orders.

    Key Takeaways

    • The Executive Branch is the primary entity through which policies are enacted and enforced.
    • Enforcement of a policy can begin once it is considered “in effect” by being codified in the Code of Federal Regulations.
    • Enforcement of policies can differ by agency, but fines, public disclosure of violations, and legal action are common enforcement tools.
    • So long as it is not in violation of any laws, an administration can chose to not enforce or weakly enforce and existing policy – and can even reverse an existing policy, often through executive action that bypasses congressional input.

    Turn Out for Tomorrow

    As evidenced above – as well as in the first and second blogs in our policy series – voting in every election matters. A lot.

    This year’s election will shape not only our future as Americans, but the future of our entire planet and its citizens. Shouldn’t you have a say?

    The power is in your hands to create the future you want.

    Register to vote today and #TurnOutForTomorrow on Election Day.

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