As we’ve seen repeatedly over the last year, infringements on our fundamental rights simply start in the legislative (or statutory) process. The bills get teeth - sometimes very sharp teeth - by the regulations that are fleshed out months later, behind closed doors, and sometimes without public input.
The Gunpocalypse bills are a glaring example. Most of the bills were “skeletons,” with definitions and other details to be worked out during “rulemaking.” (Because when you gut-and-amend so many bills, you don’t have time to work out all those pesky details.) So as December 31, 2016 rolled around, there was a lot of confusion among gun owners and law enforcement about what exactly was going to happen come January 1.
Though the statutes prescribe limits on the scope of the new law, in California the Department of Justice (the department most often involved in interpreting and enforcing gun control laws) routinely attempts to write regulations giving them more authority than the legislation allows. Because the process is lengthy and complex, they’ve gotten away with it in the past.
But, since these regulations greatly impact our rights, it’s important to understand the process by which they are adopted. Here is an outline of the process, which is governed by the Administrative Procedures Act (APA):
A statute (law) is passed or amended.
The affected agency (we’ll use DOJ here) must determine how that statute will be applied or enforced.
DOJ posts the proposed regulations (including any documents they’ve relied on) in the register, on their website, and notifies those who signed up for notifications. This starts a one-year time clock to finish the process.
A minimum 45-day written comment period begins.
DOJ may schedule a public hearing, but if they don’t, and a timely request is made, one must be scheduled.
At any such hearing, written and oral comments will be received and later published and responded to by DOJ.
If the proposal substantially changes after the comment period, DOJ must notify those who testified, commented, or requested notice.
The proposed regulation is sent to Office of Administrative Law (OAL) to be reviewed.
Once the review is complete, OAL files the regulation with the Secretary of State.
Once the regulation is filed and effective, it is law, having the same effect as if it were written in the legislature and signed by the governor.
Sometimes the public is left out of the process. When a statute is written, legislators can exempt any regulations that must be drafted from the APA, taking away the opportunity for public comment. A number of the Gunpocalypse bills were written this way, making it more difficult to stay informed and hold DOJ accountable.
The federal government has a similar process, except under federal law all rulemaking must have a comment period.
Executive orders also have the effect of law and are implemented outside of the legislative process. In the last year, both Former President Barack Obama and Oregon Governor Kate Brown used (abused) the power of their office to restrict freedom. Gov. Kate Brown had an order* issued which prohibited Oregon state employees from carrying weapons (even weapons they had concealed carry permits for) while working, while President Obama signed a ban on lead ammunition on federal lands as one of his last official acts.
As we’ve noted,President Obama signed a number of rights-stripping executive actions during his time in office, which we hope President Trump will undo.
Regulations and executive actions threaten our rights as much as the legislation enacted in front of the cameras. Our Regulatory Watch Program will keep you informed about proposed regulations so you can participate and make your voice heard.