<p>@tom1944-- I’d add that is how it works at all levels of government, and how it is intended to the work. Legislatures pass broad laws; administrative agencies have the responsibility of developing regulations to enforce the laws; and the courts resolve disputes over the law’s interpretation, with broad deference given to the determination of administrative agencies. </p>
<p>This is how it works now and always has worked, whether the agency is the IRS, or the EPA, or the immigration department, or whether it’s a local state agency enforcing state laws, such as the state’s education or insurance departments. The agencies generally have a regulatory process that involves publishing a proposed regulation for comments, possibly conducting public hearings, and ultimately issuing final regulations. At times this process might be cut short when there is a need for issuance of emergency regulations – for example, you might imagine FEMA issuing emergency regulations governing processing of claims in the wake of an unanticipated large disaster. </p>
<p>But overall the process is designed to be transparent and open to direct citizen input. </p>
<p>It really isn’t possible for laws to be written in a way that avoids uncertainty, because even when the language of a statute seems very simple and clear, there are always fact situations that arise that don’t quite fit, or where application of a strict, literal interpretation of the statute would lead to absurd or unjust results. If there is no specific regulation, then the agencies can deal with those issues on an ad hoc basis – generally there is also some sort of framework where each agency essentially has its own system of administrative hearings or officers charged with making those sorts of decisions – but if an issue comes up frequently, then regulations will be developed to deal with them. </p>
<p>The situation on the border is a good example of that interplay in action. Congress passed a law a few years back to deal with the issue of human sex trafficking – criminals bringing underage children across the border for purposes of prostitution. So to protect the child victims of that crime, Congress established a system for immigration decisions that was tilted toward the interests of the children. But that legislation resulted in opening the door to another group of children: those who are intentionally leaving their countries of origin to escape from dangerous and/or impoverished environments. </p>
<p>So now we have a problem at the border that is imminent, and no short-term likelihood of legislation to address it. Following the law as written means to adhere to the statute designed with child victims of sex traffickers in mind. These kids cannot be summarily deported or turned away at the border because the law, as written, prohibits that. So on the administrative end, there’s an effort now to fill the legislative gap with appropriate regulations to meet a situation that has reached crisis proportions.</p>
<p>The legislature always has the power to act— but the administrative agencies and their regulatory authority is there to fill in the gap until that happens. And unlike legislatures, the administrative agencies can’t avoid deciding issues that are controversial or unpopular. </p>