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Saturday, March 25, 2006

Law - The Federal Register and the Indiana Register

The Federal Register turned 70 this month. NPR this evening had a great story on how the Federal Register came to be:

All Things Considered, March 25, 2006 ยท When the federal government lost a lawsuit because it couldn't find a law on the books, Supreme Court Justice Louis Brandeis took action. The Federal Register was born, 70 years ago this month. Register director Ray Mosley chats with Debbie Elliott.
Here is a paraphase of the beginning of the NPR report:
The story of how the Federal Register was born begins with the Hot Oil cases, where the government confused the oil companies as to what the rules were. Then it turned out the rules the companies were prosecuted under were not in effect. When the case got to the Supreme Court, the Court threw it out, and that became the impetus for the Federal Register.

At the time it was very hard to know what the various agencies and the President (who issues executive orders) were doing, because there was no central body compiling the rules and keeping track of them.

Don't miss listening. Here is the 1935 Supreme Court case that led to the development of the Federal Register, Panama Refining Co. v. Ryan. A quote from the ruling:
First. The controversy with respect to the provision of section 4 of article III of the Petroleum Code was initiated and proceeded in the courts below upon a false assumption. That assumption was that this section still contained the paragraph (eliminated by the Executive Order of September 13, 1933) by which production in excess of assigned quotas was made an unfair practice and a violation of the code. Whatever the cause of the failure to give appropriate public notice of the change in the section, with the result that the persons affected, the prosecuting authorities, and the courts, were alike ignorant of the alteration, the fact is that the attack in this respect was upon a provision which did not exist.
The NPR story also mentions a law jurnal article that was arranged to be published the same day as the oral arguments in Panama Refining. The title: "Government in Ignorance of the Law - A Plea for Better Publication of Executive Legislation." Written by Erwin N. Griswold, the article appears at 48 Harv.L.Rev. 198-213 (1934-1935). It begins:
ADMINISTRATIVE regulations "equivalent to law" have become important elements in the ordering of pur lives today. Many cases have reiterated the rule that executive regulations properly made have "the force and effect of law." The volume of these rulings has so increased that full, accurate, and prompt information of administrative activity is now quite as important to the citizen and to his legal advisor as is knowledge of the product of the Congressional mill. There should consequently be no need to demonstrate the importance and necessity of providing a reasonable means of distributing and preserving the texts of this executive-made law.
Earlier this month the Washington Post columnist Cindy Skrzycki, who regularly writes on regulatory matters, had an article headed "The Federal Register Turns 70." Some quotes:
Legal experts and historians who have studied the genesis of the register, modeled after England's Rules Publication Act of 1893, credit Supreme Court Justice Louis Brandeis for pulling the proper political levers to make it a reality.

He was reacting to two things: the federal government's dismal central recordkeeping system (there wasn't any) and a stunning increase in regulation generated by New Deal programs. Brandeis worried about the "bigness" of government and the need to tell the public what government was doing.

He expressed the sentiment eloquently in 1914: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."

Brandeis applied this philosophy when a case involving two oil companies came before the Supreme Court in 1934.

Embarrassingly for the Justice Department, the government was prosecuting the companies for failing to comply with a regulation that technically did not exist when they were charged. And no one could find the original. The government lost the case on a constitutional issue, but what was memorable were the blistering questions from the bench about how to find a copy of the rule.

So he pushed for publication of an article in the Harvard Law Review called "Government Ignorance of the Law -- a Plea for Better Publication of Executive Legislation." Then, Rep. Emanuel Celler of New York introduced a bill that became the Federal Register Act on July 26, 1935.

The register and the Code of Federal Regulations, the permanent, indexed collection of those rules, became the record and road map for completed rulemakings. With passage of the Administrative Procedure Act in 1946, the register also became the vehicle for opening executive-branch proposals for public comment.

[More] Want more on the Federal Register (yes, I am a FR junkie)? See this article, titled "Public notice, opportunity for public comment ensures openness in governance," in Washington File, a publication of the U.S. State Department.

The Indiana Register is now in Volume 29, meaning it is nearing its 30th year. But my understanding is that because of actions of the General Assembly and the Legislative Services Agency over the past two sessions, the Indiana Register will never complete its 29th Volume. The ILB will have more on this next week.

Posted by Marcia Oddi on March 25, 2006 06:58 PM
Posted to Administrative Law | General Law Related | Indiana Government | Indiana Law