Must a Government Agency Follow Its Own Rules?

The government is run by people. Many individuals in these agencies are upstanding, doing their best to conduct themselves gallantly, and follow the rules. When you give anyone too much rope, though, they're bound to run afoul of the rules.

This isn't to hint at any corruption or throw out allegations of salacious behavior within government agencies. Instead, it's to suggest that, left unchecked and un-policed by anyone other than themselves, the parameters of what’s considered by those within the agency to be acceptable behavior tend to get stretched.

Regardless of whether the agencies and the people they employ don't entirely uphold their own rules, the fact is, they must follow them.

As we discuss the issue of government agencies’ obligation to abide by their own rules, we’ll rely on an article that emphasizes the “established tenet that an agency is bound by its own procedural regulations.” See Rodney A. Smolla, The Erosion of the Principle That the Government Must Follow Self-Imposed Rules, 52 Fordham L. Rev. 472 (1984).

The article points out that the government has become overly flexible in its commitment to adhere to the rules they’re meant to be governed by.

These issues stem from the legal system – at the highest levels – failing to hold the executive branch of government accountable for following its own mandated processes.

Here’s how some critical decision-makers view it when the government tramples on your rights.

The imparted rules do not create any inherent protections or entitlement to life, liberty, and property. As such, any flexibility allowed would be viewed as not triggering due process protection.

Too frequently, government agencies have been unchecked and able to avoid sanctions because their mandates can be written off as guidelines, as opposed to laws.

In fact, there have been rulings to prevent our legal system, even at the federal level, from policing the actions of government agencies. This current "freedom" afforded to the executive branch of government isn't something taken lightly. Often, the legal system – at the lower level – won't push any further to avoid the over-regulation of "an already over-regulated society."

Despite where matters currently stand, the government is still bound to its own rules.

Sure, the deck might be stacked in favor of governing authorities, but that doesn't mean they have automatic free reign to run rampant and trample on citizens’ rights. There must be continual effort being put towards positioning and applying the law in favor of public interests. This way, these agencies can be held accountable for their deviations from their own "guidelines."

Changing the current tendency of allowing government agencies too much leeway can only be done through sound legal arguments.

As per the article referenced above, there are no "radical interpretations of constitutional or government law" required to prove that the government is legally bound to its own rules. Through this lens, it becomes clear that our legal system, through the courts, can be more vigilant in how it enforces the government's own rules on itself.

A shining example in the history of the U.S. where a government's rules were enforced on itself was with President Nixon. Fought as he could to prevent Special Prosecutor Leon Jaworski from getting a subpoena for the Watergate tapes, Nixon was unsuccessful.

Nixon claimed that the dispute over the tapes primarily came down to his being protected because he was the president: "Because the executive has exclusive authority and absolute discretion to decide whether to prosecute a case, the President contended that his decision as head of the executive branch as to what evidence is used in a criminal case must be final."

This might seem a bit on the nose, but Nixon's argument was that he was above the law and could perform illegal acts.

The grounds on which this claim was rejected was that government regulations couldn't be breached by administrators. And, through Congress, the Attorney General was granted the power to conduct criminal litigation, including appointing underlings to assist him. Therefore, the Special Prosecutor could legally investigate the events of Watergate.

Lastly, it was ruled – plain and simple – that the Executive Branch is bound by the rules of the constitution, and the courts (i.e., the judicial branch of government) must enforce those demands.

It’s also important to discuss examples of how the government has been able to sidestep its own rules.

While serving a life sentence without parole, a prisoner (Wakinekona) challenged his transfer from the Hawaii State Prison to Folsom Prison in California.

Authorities in the Hawaii State prison failed to observe the elaborate procedural scheme necessary, under the prison’s own regulations, for completing such a transfer. But they went through with the process anyway.

The prison wanted to move the prison to California, and the prisoner tried to fight the move in court—he didn’t want to go so far away, understandably. The basis of the prisoner's legal argument was to point out that the committee that made the final transfer decision were the same people that initiated the transfer process. In other words, there were no superiors or neutral parties checking the decision-makers. This violated the due process clause, he argued, because those charged with the final decision were supposed to be impartial, neutral.

The prison was supposed to be bound by a regulation which said that any prison authorities involved in the transfer before the decision must be excluded from the final decision-making process.

The courts decided to ignore the rules that were "unmistakably mandatory." The courts decided that a prisoner has no right to enforce, and without such a right the prisoner can’t make the government agency to abide by its own rules.

We see that in instances where agencies have broken their own rules, sometimes we have no recourse to fix the injustice.

There is too much leeway for government administrative agencies to run amok on your rights through various legal loopholes. But we see, through something like Watergate, a precedent set for even the Executive Branch being bound to the rules.

The CACI grievance procedures are set forth and governed by state regulation, not by statute. The state child welfare agency came up with the rules that the county agencies are supposed to follow.

The county-level child welfare agencies do not always abide by the regulations. In fact, they frequently violate them. We make every effort to hold their feet to the fire and pressure them to follow the rules. They key is to hold them accountable, every time, and let them know that we know they’re breaking the rules. Often, we’ve been able to correct the problem.

Will child welfare services follow the rules in your case? You should assume they won’t, and make sure you get the help of someone who can hold their feet to the fire, so to speak.