Rulemaking is difficult. Under Wisconsin law, an agency must promulgate a rule every time it interprets, enforces, or administers a statute.1 Rulemaking involves a complex process with multiple steps that consume agency time and resources. Because of the hassle, agencies often try and avoid rulemaking.
Why does it matter if an agency promulgates a rule?
It matters because rulemaking plays a critical role in protecting the rights of the regulated community by providing notice, consistency, and opportunity for comment.
At its most foundational, rulemaking allows for “clear advance notice of permissible and impermissible conduct.”2 The regulated community should not have to guess if, or how, a statute will apply to them.
Rulemaking also reduces interagency inconsistencies in implementing the law.3 The regulated community benefits because application of a statute depends upon a previously determined standards, not the discretion of an individual—and often changing—employee.
Finally, it allows “potentially affected members of the public an opportunity to participate in the process of determining the rules that affect them.”4 The notice and comment portion of rulemaking gives the regulated community the opportunity to express concerns with a potential regulation before it binds them.
Rulemaking should be difficult. Rules have the full force and effect of statutory law. And frankly, while rigorous, it’s easy compared to the political process of enacting legislation by elected officials
Here at the Great Lakes Legal Foundation, we monitor agency policies and, when appropriate, take the actions necessary to ensure that all rules are properly promulgated.
1 Wis. Stat. § 227.10.
2 1 Richard J. Pierce, Jr., Administrative Law Treatise § 6.8 (4th ed. 2002).
3 Id. at 373.
4 Id. at 374.
