Estimated Time to Read: 3 minutes
Most Americans don’t knowingly violate laws passed by their legislature. Yet many are fined, cited, delayed, or have their businesses shut down for violating a regulation they never voted on, never saw publicly debated, and never had a representative approve.
This should trouble us deeply.
Under both the U.S. Constitution and the Texas Constitution, laws are made by legislatures; enforcement belongs to the executive; interpretation belongs to the courts. Regulations, by contrast are, or should be, administrative tools meant to carry out the law, not replace it.
And yet, in daily life, regulations are treated as if they were law.
Miss a licensing requirement buried in agency rules. Fail to comply with a guidance memo that was never voted on. Run afoul of an interpretation that changed between administrations. The result is the same as if you broke a statute: fines, penalties, or possibly the loss of your livelihood.
This is not how self-government is meant to work.
Punished Without Representation
When legislatures pass laws, citizens at least have representation. Bills are debated, amended, voted on, and signed. Lawmaking is public, accountable, and slow by design.
Regulation is different. Agencies issue rules, bulletins, and guidance documents that carry real consequences but little transparency. These rules are often written by unelected officials, enforced selectively, and revised without legislative approval.
In Texas, entire industries operate under regulatory codes thicker than the statutes that supposedly authorize them. Many rules are enforced unevenly, depending on the agency, the county, or the political moment.
This creates a dangerous inversion: the rule most likely to be enforced is not the one most clearly written into law, but the one most convenient to enforce.
Uncertainty Is the Enemy of Liberty
Liberty depends on predictability. Citizens must be able to know the law in advance and order their lives accordingly. Regulatory enforcement, many times, destroys that predictability.
A statute may say one thing. An agency interpretation may say another. A guidance memo may say something else entirely. Enforcement may depend on a government official’s subjective understanding of the guidance.
That is not the rule of law. That is rule by discretion, and discretion, once normalized, always expands.
Due Process in Name Only
When regulations are treated like law, due process suffers. Administrative hearings often lack the protections of real courts, shifting the burden to the citizen to prove their innocence instead of the burden resting on the government to prove guilt. The same agency that writes the rule may enforce it and judge violations of it. Appeals can be slow, expensive, and knowingly tilted toward the regulator.
For the average citizen or small business, compliance becomes less about obeying the law and more about avoiding attention.
That should alarm anyone who values liberty.
The Choice: Law or Regulation
If a rule is important enough to carry penalties, it is important enough to be debated and passed by a legislature. If a statute is outdated or unclear, it should be amended, not quietly rewritten by regulators.
Regulation is not law. Treating it like law undermines accountability, erodes due process, and weakens public trust.
This is a systemic problem we can no longer afford to ignore.
Texas Policy Research relies on the support of generous donors across Texas.
If you found this information helpful, please consider supporting our efforts! Thank you!
