2.13 Discretionary and Rulemaking Authority

Delegated powers, here, means authority Congress hands to executive agencies through a law. Congress delegates because it lacks the time and technical expertise to write every detail, because conditions change faster than Congress can pass new laws, and sometimes because leaving details to agencies avoids hard political choices.

A law might say “protect the public from unsafe levels of air pollution” and leave it to the EPA to decide which pollutants to limit and what the limits are.

• Discretionary authority: the agency's power to decide how to carry out a law when the law leaves room for judgment, such as which cases to prioritize or how to spend a program's money.
• Rulemaking authority: the agency's power to write regulations, which are detailed rules that have the force of law. Violating a regulation can bring fines or other penalties.

Under the Administrative Procedure Act (1946), most rules follow a notice-and-comment process. The agency publishes a proposed rule in the Federal Register, the government's daily journal of rules and notices. Anyone, including businesses, interest groups, state governments and individual citizens, can submit comments. The agency must consider them, may revise the rule, and then publishes the final rule. Final rules can be challenged in court. This process is another access point for groups trying to shape policy.

Because agencies answer to the president, regulations often change when the presidency changes hands. A new administration may loosen or tighten rules written under the last one, using the same notice-and-comment process. This makes the bureaucracy a major tool for presidents who can't get new laws through Congress.

Courts also shape agency power. For 40 years, under Chevron v. Natural Resources Defense Council (1984), courts generally deferred to an agency's reasonable reading of an unclear law. In Loper Bright Enterprises v. Raimondo (2024), the Court overruled Chevron, so judges now decide for themselves what an unclear law means. The Court has also said that agencies need clear authorization from Congress before deciding “major questions” of vast economic or political importance.

Supporters of broad agency discretion say experts can respond quickly and handle technical problems Congress can't. Critics say unelected officials end up making major policy, and that Congress should make those choices itself. Neither of these cases is a required case; just understand the trend.