Discretionary and rulemaking authority of the federal bureaucracy | Khan Academy

In many videos, we have talked about how a bill can become a law. It first gets introduced into the legislative branch, which in the United States is the U.S. Congress at the federal level. If it passes both houses of Congress, then the bill will go to the president. If the president signs the bill, or if the president vetoes the bill but then it gets overruled by the legislative, then let's just assume that the president signs the bill. Then that bill becomes a law; it becomes a law.

But the question is: how is this law actually implemented? You might guess that that is the work of the bureaucracy, and we've already talked about the bureaucracy in multiple videos already. The bureaucracy is part of the executive branch; it's actually the bulk of federal employees. As we'll see as part of this implementing process, the bureaucracy has authority on rulemaking, and it also has discretionary authority.

Let me write that down. So the bureaucracy is going to implement the law, and they have different types of authority to do so. They have rule-making authority, where for specific circumstances they might say, "Hey, this is how it's going to work," that the law itself does not specify. But based on what that law is trying to do, they're going to set some rules.

As we'll see, the people working inside the bureaucracy, many of whom are experts on whatever policy they're trying to implement, have some discretion on how they actually implement this law. So the authority—sometimes you'll hear rule-making authority and discretionary authority.

As an example of that, we can look at what is often known as Title IX. So this right over here is Title IX of the Education Amendments of 1972. It passed through Congress and then was signed into law by President Nixon. It says, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance."

So this gets through the legislature; President Nixon signs it, and it becomes a law. But then how does this thing actually get implemented? And so, as we've already talked about, this is the job of the bureaucracy. It's not just one department; many departments of the federal government are going to have to think about how they implement this statute.

As an example of how, say, the Department of Education thought about it, I'll give you a little bit of an excerpt from their rules and regulations. So this right over here is part of the rules and regulations from the Department of Education in their attempt to implement Title IX.

As I read, think about what part of this really shows the bureaucracy's rule-making authority and what part shows its discretionary authority: "Every application for federal financial assistance shall, as a condition of its approval, contain or be accompanied by an assurance from the applicant or recipient, satisfactory to the Assistant Secretary, that the education program or activity operated by the applicant or recipient, and to which this part applies, will be operated in compliance with this part."

So that is a mouthful; I will help you parse it a little bit. In this document, the terms "applicant" and "recipient" refer to the institutions that are either applying for federal assistance or have already received financial assistance. The statement, "every application for federal financial assistance shall, as a condition for its approval, contain or be accompanied by an assurance from the applicant or recipient," indicates that the big picture—this whole thing—is a rule that is being set up by the Office of Civil Rights within the Department of Education.

So it clearly shows rule-making authority, and this is just one part of a much larger document full of rules on how just the Department of Education is thinking about Title IX. These things have the rule of law, even though every detail here has not been passed through Congress.

Now, of course, Congress will have forms of oversight over this, and the Supreme Court can also deem certain rules or regulations to be unconstitutional if it thinks that they are unconstitutional. Now, another thing in this clause right over here that I just read—you might have noticed, "satisfactory to the Assistant Secretary." So it's the Assistant Secretary's discretion as to whether an institution has met the requirements.

So once again, this shows the discretionary authority of the bureaucracy. The big takeaway here is: it is the legislative branch that is responsible for passing laws, and then you have the president that would sign something into law. But once it's a law, there's a lot of details to be worked out in terms of how it's implemented, and that is the job of the bureaucracy.

In order to do that, they make rules and regulations, and those rules and regulations also have the force of law. On top of that, there's going to be opportunities for them to exercise their discretion.