Bureaucratic Authority

What is bureaucratic authority?

• The American bureaucracy is a wide set of federal agencies, typically housed in the executive branch, responsible for executing the policies passed by Congress. These agencies range from the Central Intelligence Agency (CIA) to the Environmental Protection Agency (EPA) to smaller agencies like the Arctic Research Commission. Decisions about implementation are made by civil servants, career government employees who are experts in their field.  
• Bureaucratic power is the influence and authority that these government agencies have to implement policies, make decisions, and carry out the functions of government. In theory, Congress could eliminate bureaucratic authority by specifying exactly what bureaucrats should do. In practice, because many details of a new policy are not well-understood at the time it is enacted by Congress, and because most bureaucrats tend to know more about the details of a policy than elected officials, bureaucrats have considerable authority over public policy.

How is bureaucratic power different from legislative power?

• The US Constitution mandates that the legislative branch (Congress) makes laws and the executive branch (the bureaucracy) implements them. However, the Administrative Procedure Act (APA) of 1946 gave agencies bureaucratic discretion, or the power to develop rules and regulations that have the force of law. These rules make up the Code of Federal Regulations (CFR), which are enforceable just like federal statutes. For example, if Congress passes a law to promote the employment of veterans as wildfire fighters, the agency responsible for administering that law, the Department of Veterans Affairs, must determine program aspects like how to inform veterans of the program and who will be eligible.
• Bureaucratic agencies have also been granted quasi-judicial authority. The APA allows bureaucratic agencies to set up administrative courts to settle disputes about their implemented rules. These courts (sometimes called the “hidden judiciary”) are separate from the judicial court system. Approximately 2,000 administrative law judges preside over hearings like Social Security requests, immigration cases, and labor disputes. Policy can also be developed through adjudication, which is the process of settling disputes about the effect of policy through administrative courts.

What is the process used to develop regulations?

• Federal agencies interpret new laws and carry out old ones using the federal rulemaking process established by the APA in 1946. Agencies notify the public that a new rule needs to be made and provide a summary of the proposed rule. This proposed rule is then opened for public review (printed in a publication known as the Federal Register). Then anyone (citizens, lobby groups, companies) has 90 days to submit a comment on the proposed regulation. These comments are also printed in the Register. The agency then revises the proposed rule into a final rule. This final rule is published for public view. After the final rule is published, it becomes federal law.

How many regulations are developed each year?

• Major rules are rules that would have a large impact on the economy and consumers or make it more difficult for US businesses to compete with overseas businesses. Between 1997 and 2018, an average of 71 major rules were issued per year. Minor rules are rules that do not meet this threshold. Minor rules could be small adjustments to current policy. In 2018, 3,368 total rules were published.

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Can elected officials control the bureaucracy?

• One way for Congress to monitor the bureaucracy is by regularly monitoring the outputs and actions of agencies (‘police patrol oversight’). Alternately, Congress can set up processes by which citizens and interest groups can monitor agencies and call for Congress or the courts to address the issue (called ‘fire alarm oversight’ by scholars). This ‘fire alarm oversight’ means that monitoring the bureaucracy falls more heavily to interest groups and citizens, who alert Congress when action needs to be taken. Congress can also intervene in the rulemaking process. The 1996 Congressional Review Act gives Congress oversight over major rules, including the ability to overturn a rule. Lastly, Congress influences the bureaucracy through the federal budget. Because Congress establishes the funding for all bureaucratic agencies, they can influence policy execution by increasing or decreasing an agency’s funding for the coming year or directing how funds are spent.
• The President primarily influences the bureaucracy through the power to appoint roughly 4,000 leaders in most bureaucratic agencies. In general, presidents typically appoint individuals who align with their vision for how the bureaucracy should implement policy.

Why don’t Congress and the President eliminate bureaucratic discretion?

• Reducing bureaucratic discretion likely means reducing the value of policy experts. Although there are downsides to this delegation of authority, including potential partisan influence over policy, neither Congress nor the President has the information capacity to replace the information benefits of bureaucratic discretion. Unless Congress were to expand its staff, or gain access in some other way to resources that can provide similar expertise and knowledge to replace the policy experts in the bureaucracy, the way legislation gets implemented would likely be less informed or effective than it currently is.