06 Jun On the power of agency guidance and legal power
On the question of whether or not governmental agencies possess legal power, and whether or not their official guidance’s possess any legal strength.
Theoretically, the answer should be no. After all, the agencies are nothing more than bureaucracies created to enact existing law, and the guidance’s are little more than statements indicating how they plan to do that.
Unfortunately, this is no longer the case.
On account of the numerous and varied laws enacted over the years, many of which effect things that they were never meant to affect, we no longer have a single, coherent body of law for our agencies to enforce. This problem is further compounded by court cases which enshrine differing interpretations of the same law into effect, as different judges have different minds, and the vast majority of the do not follow the doctrine of textualism, which would at least ensure some degree of similarity amongst the various rulings.
The result of all of this is a complete labyrinth of legalities which constantly contradict one another and counteract each other.
A labyrinth through which our various federal agencies must now choose a path, using the tools of prosecutorial discretion. Which is effectively choosing which laws will hold sway for the foreseeable future.
As to whether or not they themselves possess legal authority, of course they do. They are the government, and the department of Justice is merely acting on its behalf.