Congress often delegates its legislative authority to administrative agencies which exercise that authority to revise, interpret and define legislation. The increasing volume of such administration has caused one federal circuit court to note that even the government agencies were apparently incapable of knowing what their own “law” is.
One recent case the appellate court panel noted took the court,
“. . . to a strange world where the government itself – the very ‘expert’ agency responsible for promulgating the ‘law’ no less – seems unable to keep pace with its own frenetic lawmaking. A world Madison worried about long ago, a world in which the laws are ‘so voluminous they cannot be read’ and constitutional norms of due process, fair notice, and even the separation of powers seem very much at stake.”
Not surprisingly, the case, Caring Hearts Personal Home Services, Inc. v. Burwell, 2016 U.S. App LEXIS 9790 (10th Cir. May 31, 2016), concerned Medicare services supplied by a provider in 2008 which likely complied with the applicable rules and regulations then in effect. Instead, the Centers for Medicare & Medicaid Services sought to apply much more stringent regulations that the agency had only adopted several years later.
Eugene Volokh’s discussion of the case is here.