2.13-2.15

Discretionary and Rule-Making Authority

Introduction

  • Key Quote: "It is an inevitable defect, that bureaucrats will care more for routine than for results." - A. Walter Bagehot, 1867

  • Essential Question: How does the federal bureaucracy use delegated discretionary authority to make and implement rules?

Structure of Federal Bureaucracy

  • Executive Departments: 15 main departments in the U.S. managing various facets of government policy.

  • Agencies and Commissions: Assist executive departments in policy implementation.

    • Role: Administer laws created by Congress, the executive branch, and the courts.

  • Process Overview:

    1. Congress passes a law assigning mission and jurisdiction to a department or agency.

    2. The President appoints heads of departments/agencies and issues executive orders.

    3. Significant agency decisions can be contested in court, influencing operations.

Delegated Discretionary Authority

  • Definition: Power given to executive departments/agencies to interpret legislation and create rules.

  • Example: Environmental Protection Agency (EPA) asserting authority over greenhouse gases despite lack of explicit mention in law.

Rule-Making Process

  • Continuous Refinement: Agencies survey responsibilities and frequently create or update rules.

    • Public outcry or new technology as catalysts for rule creation.

    • Example: Federal Election Commission's response to digital political advertising.

A Transparent and Public Process

  • Engagement Steps:

    • Agency officials collaborate with experts; collect input from stakeholders.

    • Public comment period is important under the Administrative Procedures Act (APA), formalizing rule-making.

  • Transparency Measures:

    • Agencies are required to provide opportunities for public input through hearings and meetings.

Congressional Responsibility

  • Accountability Issues:

    • Concerns regarding how delegated authority impacts accountability to voters and citizen interests.

  • Scholarly Insights: Justin Fox and Stuart Jordan examine the conditions under which Congress delegates authority to bureaucratic agencies.

Factors Affecting Delegation of Authority

  • Information Asymmetry: Congress members often possess more detailed information than voters about agency functions.

  • Trust in Expertise: Reliance on bureaucratic professionals who exhibit policy expertise.

  • Electoral vs. Policy Motives: Prioritization of policy solutions over personal popularity influences delegation.

Implementing the Law

  • Discretionary Powers of Agencies: Agencies can make autonomous decisions, such as:

    1. Payment of subsidies (e.g., to farmers)

    2. Distribution of federal funds to states

    3. Regulatory enforcement (e.g., FCC, EPA)

  • Information Publication: Agencies must publish regulatory goals, legal authority, and the text of regulations for public knowledge.

  • Final Regulations: Must provide gracing periods and are recorded in the U.S. Code of Federal Regulations and Federal Register.

Independent Regulatory Agencies

  • Executive Function: Independent agencies enforce industry-specific laws and create regulations.

  • Structure: Often run by boards or commissions with staggered terms to maintain continuity across presidential administrations.

    • Appointment of directors requires cause for removal, limiting presidential control.

Examples of Discretionary Authority Among Agencies

  • Homeland Security: Exemptions for certain immigrants.

  • Transportation: Deciding grants for highway projects.

  • Veterans Affairs: Administering healthcare for veterans.

  • Education: Adjusting student debt policies.

  • Environmental Protections: Overseeing state environmental issues.

Challenges to Regulatory Authority

  • Federal Election Commission's (FEC) Evolution: Changes in authority and influence due to Supreme Court decisions affecting campaign finance.

  • Operational Constraints: FEC struggles with quorum issues, impacting its ability to enforce laws.

Political Oversight of Bureaucracy

Congressional and Presidential Accountability

  • Congressional Role: Legislate agency creation, define roles, set budgets, and conduct oversight through committee hearings.

  • Presidential Influence: Appointments shape agencies, and regulatory agendas are enforced through budgets and executive orders.

Key Terms and Names

  • Key Legislation: Administrative Procedures Act, Freedom of Information Act, Sunshine Act, Whistleblower Protection Act.

  • Conceptual Terms: Delegated discretionary authority, independent regulatory agencies, power of the purse.

Conclusion

  • The interaction between the Congress, the President, and judicial courts ensures that the bureaucracy is held accountable in its rule-making process, balancing the need for regulation with the principles of democracy and accountability.