Besides the state Constitution, Maryland is governed by two types of rules: statutes and regulations.
Statutes are laws passed by our legislators in the Maryland General Assembly and listed in the Maryland Statutory Code. They are subject to all the steps known infamously to many of us in the Schoolhouse Rock song “How a bill becomes a law”, which include public hearings in both chambers, committee votes in both chambers, amendments, floor votes, and finally the governor’s signature or veto. It is this legislative process which allows for citizen input and representation into the decisions made by our state government. The Maryland General Assembly website also lays out a detailed explanation of the process here.
Regulations are rules and administrative codes issued and adopted by state governmental agencies and listed in COMAR (Code of Maryland Regulations). While they are not statutes, they have the force of law including violation penalties. In order for a department to adopt a regulation, the Maryland General Assembly must pass a statute that grants the department the authority to issue regulations relevant to the statute being passed. Beyond that, there is very little citizen input into the carte blanche regulatory process besides a department public input hearing and publication in the Maryland Register.
Once the authority to pass regulations is granted by the legislature to a department, the legislature has only one avenue in which to have input into the regulation. This very limited avenue is the AELR Committee (Administrative, Executive, and Legislative Review). This committee of legislators, appointed annually by the Senate President and House Speaker, is composed of twenty members. The AELR Committee can place requirements on regulation passage, such as requiring public hearings on emergency regulations and other measures.
Essentially, regulations take what is traditionally and constitutionally a legislative power (creating laws) and puts it in the hands of an administrative department within the Executive branch of government. It is a conjoining of powers intended “to be forever separate and distinct from each other” per Article 8 of the Declaration of Rights in the Maryland Constitution. Article 9 forbids any entity but the legislature from executing laws except with the permission of the legislature.
Code-making by means of agency regulation not only severely diminishes transparency and citizen input, but it virtually eliminates accountability. If an agency, staffed most often by gubernatorial appointees, not legislators elected by the citizens, passes a regulation that is unfavorable to the people, the electorate can’t fire them. Appointees serve at the pleasure of the appointor, and therefore does not answer to the people.
The carefree issuance of regulatory authority from the legislature to agencies also creates other problems. Rather than doing the hard work of laying out bill language to stipulate details within the law, legislators can pass those decisions on to the agencies. Sometimes it only makes sense, as those agencies are the experts in their area. But in doing so, it precludes the public from input into those details through the legislative process. Legislators can also use regulation to avoid making decisions on sensitive topics for which they don’t want to go on record. Moreover, bill sponsors can remove language from a bill which makes passage difficult and allow that language instead to be put in code through regulation after the bill passes.
The people need to be especially diligent in monitoring regulations. We need to ask our elected officials to be sparing in issuing carte blanche regulatory authority. Citizens must be familiar with the members of the AELR Committee, communicate concerns over regulations, and press them to provide adequate oversight. We should push for changes which will require departmental boards to be majority elected instead of appointed.
Until both the law and the state Constitution are changed with regard to agency regulatory authority, eternal vigilance is the only recourse.