The Rulemaking Power of Administrative Agencies: Crisis of Legality, Rule of Law, and Democracy

52 Pages Posted: 11 Jun 2014 Last revised: 12 Jun 2014

See all articles by Ana-Raquel Moniz

Ana-Raquel Moniz

University of Coimbra - Faculty of Law

Date Written: April 4, 2014


The actual role of the fourth branch in the triggering of the current economic and financial crisis, together with the recent case law and theoretical developments in the area of regulation, are compelling evidence that a reflection on the powers of independent administrative agencies is critically needed. The importance of such reflection is no less linked to the duties of the regulatory State vis-à-vis the constitutional State – a case in point is when the agencies take on quasi-judicial and quasi-legislative power.

Laying special emphasis on this latter aspect, the present study deals with the questions concerning the rulemaking power of regulatory agencies. It reflects the most recent trends in administrative law, and includes an analysis of the relations between the normative layers of contemporary legal systems, the emergence of new regulative frameworks, the loss of the traditional territorial scope by administrative rules, the strengthening of the fourth branch, the balance between consensus and command-and-control, and the dialectics between politics and law.

The adopted comparative law perspective intends to profit from the Americanization of European legal systems and the evolution of the U.S. administrative state. Regulations, which are regarded as policy tools of the regulatory state, clearly express the recent mutations in constitutional and administrative law.

The significance and scope of regulatory discretion shall be discussed first and then it will be contextualized within the trend toward delegalization. After considering the meanings, forms and expressions of delegalization as well as its consequences to the administrative rulemaking power, the limits of regulatory discretion will be addressed. The A. concludes that the rulemaking power of agencies is now confronted with the very foundations of the constitutional State: Rule of Law, separation of powers, and democracy.

Keywords: Administrative agencies, Regulation, Rulemaking power

JEL Classification: K23

Suggested Citation

Moniz, Ana-Raquel, The Rulemaking Power of Administrative Agencies: Crisis of Legality, Rule of Law, and Democracy (April 4, 2014). Available at SSRN: or

Ana-Raquel Moniz (Contact Author)

University of Coimbra - Faculty of Law ( email )

Pátio das Escolas
Coimbra, 3004-545

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