The four levels of program definition: Part 1
When we talk about a housing program, what do we mean? Where and how is a program defined?
“There are four levels of program definition than are dreamt of in your philosophy.”
Hamlet, as published for comment
“Alas, poor Yorick, I blogged him, Horatio.”
A program is defined in four levels:
- Laws, big-picture rules and money enacted by the legislators.
- Regulations, detailed explanations and protocols, written by departments.
- Administrative guidance, periodic procedural refinements, written by administrators.
- Precedent-setting decisions, case-based adjudications, written by case officers.
Significantly, each level is created after the preceding ones and represents finer-grain detail. From telescope to microscope, we focus from big picture to small.
From the big picture …
… to the small
A properly designed program uses all four levels of definition, but develops them structurally and administers them appropriately.
1. Laws and statutes
Legislation is hard to write, as it is fraught with uncertainty and lobbying. And unless it has an embedded sunset provision, it lives unless repealed or amended. So legislation tends to be enacted infrequently, and because politicians are of necessity generalists, the best legislation does not specify too much.
Done properly, legislation should treat the process of transacting as a black box, with inputs and outputs:
- Inputs are resources (such as appropriations or tax expenditures), eligible properties, eligible program participants, and rules of engagement around how program participants can get their hands on resources.
- Outputs are desired property types, configurations, costs, affordability targets — anything measurable.
“What part of Thou shalt not do you not understand?”
Good legislation specifies nothing in between. That’s for later (regulation and administrative guidance).
The world’s greatest example of efficient legislation is the U. S. Constitution, which in a model of economy provides a complete governing blueprint in only 4,600 words. (The twenty-seven amendments since then have added another 3,300 words.)
Bad examples are legion. The Low Income Housing Tax Credit (Section 42 of the Internal Revenue Code), clocks in at over 14,800 words, more than triple the Constitution’s, and includes such gems of brevity as this:
(C) Low-income buildings where mortgage may be prepaid
A waiver may be granted under subparagraph (A) (without regard to any clause thereof) with respect to a federally-assisted building described in clause (ii) or (iii) of subparagraph (B) if—
(i) the mortgage on such building is eligible for prepayment under subtitle B of the Emergency Low Income Housing Preservation Act of 1987 or under section 502(c) of the Housing Act of 1949 at any time within 1 year after the date of the application for such a waiver,
(ii) the appropriate Federal official certifies to the Secretary that it is reasonable to expect that, if the waiver is not granted, such building will cease complying with its low-income occupancy requirements, and
(iii) the eligibility to prepay such mortgage without the approval of the appropriate Federal official is waived by all persons who are so eligible and such waiver is binding on all successors of such persons.
(Heaven save me, I actually know what that means!)
What’s amusing about this example, which I pulled more or less at random from a few moments’ perusal of Section 42, is that the condition it describes is virtually extinct, but those 155 words still clutter up the code.
But I must reserve the grand prize for the unlamented stillborn European Constitution, whose Table of Contents has 2,300 words (!), half as long as the entire U. S. Constitution (!!).
Why pour such scorn on bloviating laws? Because they invite problems, with sections ignoring each other’s existence, tripping over one another, or contradicting one another.
“Do I contradict myself? Very well then, I contradict myself. I am large, I contain multitudes.”
– Walt Whitman, channeling the European Constitution.
“I am large, I contain multitudes.”
Everything not mandatory is forbidden.
Everything not forbidden is mandatory.
– Department of Redundancy Department
2. Regulations
If statutes are stone tablets, then regulations are the Rule of Saint Benedict, a detailed compendium of the practicalities of adhering to broad principles of law.
Saint Benedict and the Rule
Once a law is enacted, it is handed over to the appropriate government department to implement, and at this point the department writes regulations. These do several things:
- Interpolate relevant details implied or bounded by the legislation, but not specifically stated.
- Specify the process by which the legislative inputs are used to create the legislative outputs.
- Provide detailed procedures to apply for the program, participate in it, operate under it, demonstrate compliance, and if necessary become subject to enforcement.
- Inaugurate the program by stating an effective date for program application.
Key to the statute-regulatory handoff is simply that whereas legislators design laws for a living, administrators interpret them. While legislators set the direction, senior administrators map the course consistent with the legislative edict.
Regulations may not contradict the statute — they must implement it fully and consistent with Congressional intent. In creating bright-line boundaries, regulations may interpolate — indeed, they often must connect the dots, but they may not stray beyond their statutory leash.
Connect the dots by drawing four straight lines without lifting your stylus from the screen.
Thus, in the
When the regulations are revised, the administering agency must report all public comments and respond to them. The whole process is very healthy, from a technical-improvement perspective, as a means of providing affected stakeholders a direct input into the rules by which they live, and as a permanent record of the rulemaking process
Sometimes regulations are interim for effect, meaning people can participate even though the rules are still subject to revision.
For reference, regulations are codified in a consolidated Code of Federal Regulations (CFR), a massive and detailed tome updated annually.
“Will the regulations be published on schedule? Tune in tomorrow, same blog time, same blog channel!”
[Part 2 continues tomorrow]
