I find it to be an exasperatingly obvious given that human transactions get "regulated" one way or another. to wit,
If there were only one man in the world, he would have a lot of problems, but none of them would be legal ones. Add a second inhabitant, and we have the possibility of conflict. Both of us try to pick the same apple from the same branch. I track the deer I wounded only to find that you have killed it, butchered it, and are in the process of cooking and eating it.
The obvious solution is violence. It is not a very good solution; if we employ it, our little world may shrink back down to one person, or perhaps none. A better solution, one that all known human societies have found, is a system of legal rules explicit or implicit, some reasonably peaceful way of determining, when desires conflict, who gets to do what and what happens if he doesn’t.
The legal rules that we are most familiar with are laws created by legislatures and enforced by courts and police. But even in our society much of the law is the creation not of legislatures but of judges, embedded in past precedents that determine how future cases will be decided…
Friedman, David D.. Law's Order: What Economics Has to Do with Law and Why It Matters (p. 3). (Function). Kindle Edition.
My longstanding riff:
Federal statutes set forth the “what” and (often optionally) the “why” of proposed bills that become enacted laws.OK, so, IANAL, notwithstanding my fairly broad Administrative Law chops (mostly atrributable to my 1990s grad work). I was curious, so I went to Google Gemini "AI."
Subsequent subordinate regulations (published in the CFR) set forth the “who,” “how,” where,” and “when” the statutory “what” gets accomplished in furtherance of the legislative intent. “Rule writing” is delegated to appropriate executive agency officials (e.g., “as the Secretary shall determine…”), who subsequently compose and publish “NPRMs”—Notice of Proposed Rule-making, in the Federal Register. A public input review period then ensues for adequate, informed, material commentary and advice, after which the Final Rules (“FRs”) are appended to the CFR—Code of Federal Regulations. To the extent that a Final Rule fails to comport with the “what” specified in the parent legislation, it will be challenged judicially, and either modified or struck down.
I see nothing explicit nor implied in the Constitution prohibiting Congress (the Article I branch) from including The Who/How/Where/When operational procedures** within the statutes, but, that has not to date been the case. There are some (what ought be) obvious reasons. First of all, can you say “relatively apolitical SME career civil servants within Executive Branch agencies?”** For those who’ve worked in Corporate, the apt analogy is those MEGO-inducing 2-3 inch “Policies & Procedures” binders we mostly ignored.
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A question I posed to Google Gemini:No further questions, Your Honor.
“What proportion of ‘federal regulation’ is NOT subordinate to federal legislation? i.e., duly enacted statutes?”
"Virtually 0% of formal federal regulations are independent of or superior to federal legislation.
Under the United States legal hierarchy, federal administrative regulations—which are compiled in the Code of Federal Regulations (CFR)—are entirely subordinate to duly enacted federal statutes.
The Legal Hierarchy
For a federal agency to issue a legally binding regulation, it must possess an explicit grant of authority from Congress, known as an enabling statute. Because of this framework:
* Statutory Supremacy: If a federal regulation conflicts with a federal statute, the statute always wins, and courts will invalidate the regulation.
* No Inherent Power: Administrative agencies have no inherent constitutional power to write laws; they are entirely creatures of statute. If Congress repeals or restricts an agency's statutory authority, the underlying regulations lose their legal basis.
The Only Direct Executive Exceptions
The only executive actions that can bypass or match the authority of congressional legislation are those derived directly from the President's independent constitutional powers under Article II (such as acting as Commander-in-Chief or conducting foreign affairs).
However, these actions are typically issued as Executive Orders or Presidential Proclamations, not standard administrative regulations. Even then, if a President's independent executive directive directly conflicts with a validly enacted statute passed by Congress, courts frequently rule that the President's authority is at its lowest ebb and will strike the directive down unless it falls entirely within an exclusive presidential core power."
BTW: It's not "AI." It's just LLM-based improved search engine lookup.
Some KHIT "prior art"
More shortly...
