2.13 - Discretionary and Rulemaking Authority
Administrative Discretion
Once Congress passes a law, an agency gets put in charge of actually implementing and enforcing it.
- Administrative Discretion: Congress often lets agencies decide how to implement and enforce legislation, which significantly boosts agency power.
Rule-Making Authority
Agencies are often empowered to write regulations that carry the force of law.
- The "dirty little secret": Congress often writes vague laws on purpose, leaving agencies to fill in the specifics.
- Rationale: Congress lacks the time and expertise for the fine details, so it hands that job to policy experts. Example: the Clean Air Act (1970) set broad goals for cleaner air, but left the EPA to write the actual regulations.
- Advantages: policies get made by people with real expertise, and it's meant to keep politics out of the technical details.
Quasi-Legislative and Quasi-Judicial Power
Agencies often end up doing jobs that overlap with the other two branches.
- Agencies make regulations (quasi-legislative), enforce them, and punish violators, often through fines (quasi-judicial). Example: the EPA writes rules, enforces them, and punishes violators, all in one agency.
- This overlap fuels the criticism that unelected bureaucrats hold too much power.
Agencies and Their Discretion
Examples of agencies using the discretion Congress delegated to them:
Agency | What it does | Example of discretion |
Department of Homeland Security | Created in 2002 after 9/11; protects against terrorism and secures the borders (includes TSA, FEMA, and Customs and Border Protection) | TSA decides how airport screening works and what passengers can carry onto planes |
Department of Transportation | Highways, air travel, railroads, and vehicle safety (includes the FAA) | Sets vehicle safety standards like seat belt and airbag requirements, and FAA safety rules for airlines |
Department of Veterans Affairs | Health care and benefits for veterans | Decides which health conditions count as connected to military service, which affects who gets disability benefits |
Department of Education | Federal student aid and enforcing civil rights laws in schools | Writes rules for how schools must handle complaints under Title IX, rules that have changed from one administration to the next |
Environmental Protection Agency (EPA) | Enforces environmental laws like the Clean Air Act | Sets limits on how much pollution power plants and cars can release |
Federal Election Commission (FEC) | Enforces federal campaign finance laws; six commissioners, no more than three from one party | Decides how contribution limits and disclosure rules apply, and fines campaigns that break them |
Securities and Exchange Commission (SEC) | Regulates the stock market | Requires public companies to disclose financial information and punishes fraud like insider trading |
Big picture
The bureaucracy gains a lot of its influence through delegated power. Vague legislation forces agencies to fill in the gaps through rule-making, which combined with enforcement and punishment authority means agencies effectively act like mini versions of all three branches, a major source of criticism and debate.