Dickinson Law Review
Administrative Agencies, Agency Rulemaking, Pennsylvania, Legislative Review, Act 19, Independent Regulatory Review Commission, Legislative Agencies
As the legislative delegation of power to administrative agencies has grown over recent decades, so have calls for controls on agencies exercise of that power and particularly for controls on agency rulemaking. In response, various state legislatures have introduced a myriad of designs introducing legislative oversight and control over administrative regulations. Pennsylvania has joined these states by offering a means of legislative review of agency rulemaking in the form of the Regulatory Review Act of 1989 (Act 19). Pursuant to the Act, the Pennsylvania Legislature created an entity called the Independent Regulatory Review Commission and assigned to the Commission the task of reviewing administrative regulations. Upon review, the Commission is to make a recommendation to special House and Senate Standing Committees (also established by the Act), that the regulation should be approved or disapproved. Final disapproval of any regulation occurs only after passage of a concurrent legislative resolution barring the publication of the regulation. Absent such a vote, the administrative regulation is deemed approved and is promulgated through traditional channels. Partly in response to criticism that disapproval of regulations purely by legislative resolution is constitutionally suspect, especially in light of recent federal and state cases prohibiting substantive lawmaking from being undertaken through the instrument of a legislative resolution, the statute was reenacted to include a provision requiring presentment of concurrent resolutions of disapproval to the Governor for veto or approval. The analysis is separated into four parts. The first section examines the validity of the Commission's authority to take direct action in light of the possibility that it may be characterized as a legislative agency. The second section analyzes whether the Act's empowerment of the legislature to determine whether an agency rule is ultra vires usurps the authority of the judiciary. The third section evaluates whether the character of the legislature's disapproval of proposed rules permits the criticism that the legislature has interfered with the powers constitutionally entrusted to the executive branch of government. The last section examines whether the rule review under Act 19 generates antidemocratic fallout that impairs the goals of governmental accountability and efficiency.
Nicholas J. Johnson,
There May Be Cracks in the Foundation: An Analysis of Pennsylvania's Current Approach to Legislative Review of Agency Rulemaking , 94 Dick. L. Rev. 637
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