What you need to know
- Every year, federal bureaucrats implement major policy changes through a process known as rulemaking.
- Because rulemaking does not directly involve elected officials, it is often seen as a way for bureaucrats to evade political control.
- What safeguards exist to prevent bureaucrats from misusing their authority?
What does the federal bureaucracy do?
The federal bureaucracy consists of all agencies within the Executive Branch of government, from Cabinet departments like the Department of Defense to independent agencies (those not part of departments) like NASA, and regulatory agencies such as the Federal Aviation Administration. Overall, nearly 3 million Americans work for the federal government.
Under America’s Constitution, Congress and the President make laws and bureaucrats implement these laws. Sometimes implementation is simple and straightforward – for example, an appropriations resolution might direct bureaucrats in the Department of Defense to purchase 20 F-16 fighter jets from Lockheed Martin for use by the Air Force. Bureaucrats would then prepare a contract, send payments, and take delivery.
Other laws set out broad goals, then direct bureaucrats to determine how these goals should be achieved. Bureaucrats respond by developing new rules - a regulation, directive, or procedure - that implements the goals. For example, after Congress enacted the Clean Air Act in 1970, it gave bureaucrats the job of determining which chemicals should be regulated and what limits should be placed on cars, factories, and other emitters of such chemicals.
Why don’t members of Congress develop rules on their own? The answer is that Congress has limited time, resources, and expertise. The intent is by letting bureaucrats make rules, it allows them to act based on their experience and expertise. And, as we discuss later, members of Congress have various ways to overturn rules that they disapprove of.
How does rulemaking work?
The rulemaking process in the federal bureaucracy is governed by the Administrative Procedures Act (APA), enacted in 1947, and the Congressional Review Act (CRA), enacted in 1996. The APA sets out a process for bureaucrats to draft rules, release the drafts for comment (including notifying Congress), revise the rules, and only then put the revised rules into effect. The CRA also provides a mechanism for members of Congress to overturn proposed rules that they disapprove of.
The CRA divides rules into two groups, major and minor. Major rules would cause more than a $100 million change in the gross domestic product or would cause major changes in prices or employment. Of the thousands of rules that bureaucrats write each year, only a small fraction each year are major rules, as shown in the figure below.
What checks the federal bureaucracy?
At first glance, the rulemaking process gives enormous power to the federal bureaucracy. What prevents bureaucrats from writing rules that reflect their policy ideas rather than congressional directives? To begin with, bureaucrats must inform members of Congress about proposed rules. Congress can also demand testimony from agency personnel in oversight hearings or during the annual budgeting process.
Moreover, the CRA allows Congress to overturn proposed regulations by majority vote in the House and Senate using a joint resolution – a type of proposal that can be brought to the floor for a vote even if party leaders disapprove. Members of Congress can also change policy by adding language to the annual agency budget or by passing new legislation to clarify their expectations.
Presidential authority over agencies is more limited. Presidents can appoint new agency leadership and change proposed agency budgets. However, when agencies are given directives in the form of new legislation, only Congress has the power to change these directives or reverse proposed rules.
These mechanisms give legislators and the President a means to bring bureaucratic rules back in line with the goals specified in legislation. In practice, elected officials sometimes do nothing in these cases because they prefer the bureaucracy’s interpretation of a piece of legislation against the measure’s original goals. Particularly in cases of divided government (each party controls one House of Congress), it may be hard to build coalitions to reverse bureaucratic actions.
Individuals and businesses affected by a new rule can also bring a case to federal court claiming that bureaucrats went beyond their congressional mandate. Under the so-called Chevron doctrine (named after a court case, Chevron v. NRDC), courts would allow new rules to stand as long as an agency could argue that it had acted based on experience and expertise. This doctrine was overturned by a recent Supreme Court case, Loper Bright Enterprises v. Raimondo. Going forward, courts will likely defer less to bureaucratic decisions and have more power to decide for themselves if an agency has misused its authority.
The Take-Away
Members of Congress have various ways to learn about and reverse bureaucratic decisions they disapprove of. Presidents have important indirect powers, including proposing new agency budgets and senior agency leadership. Bureaucratic rulemaking is also subject to review by the courts.
Whether these safeguards prevent all bureaucratic wrongdoing is an open question. From 2001-2022, only 20 rules were overturned using the CRA procedure. It appears that members of Congress are generally satisfied by the outcome of the rulemaking process. Further research is needed to determine whether this outcome arises because bureaucrats stay close to legislative goals when making rules, or whether they deviate from goals in ways that members of Congress approve of.
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Further reading
Howe, A. (2024). Supreme Court strikes down Chevron, curtailing power of federal agencies. SCOTUSBlog, June 28, 2024. https://tinyurl.com/4tvfrs3w
McCubbins, M. D., & Schwartz, T. (1984). Congressional oversight overlooked: Police patrols versus fire alarms. American Journal of Political Science, 28(1), 165–179. https://www.jstor.org/stable/2110792
Sources
Beermann, J.M. (2024). Loper Bright and the future of Chevron Deference. William and Mary Law Review 65(1): 1-26. https://tinyurl.com/3ds8e7sk.
Carey, M. P. (2019). Counting Regulations: An Overview of Rulemaking, Types of Federal Regulations, and Pages in the Federal Register. Congressional Research Service. http://tinyurl.com/2a9btm8z.
Congressional Research Services. (2024). The Congressional Review Act: A brief overview. https://tinyurl.com/4mtr6rh8.
Government Accountability Office. (2025). Database of rules. https://tinyurl.com/3jayrrku.
McNollgast. (1999). The political origins of the administrative procedure act. Journal of Law, Economics, and Organization, 15(1), 180-217. https://www.jstor.org/stable/3554948.
Office of the Federal Register. (2013). A Guide to the Rulemaking Process. https://tinyurl.com/2s4zb36v.
Contributors
John Arnold (Intern) Is a junior at Binghamton University majoring in Political Science and Economics
Robert Holahan (Content Lead) is Associate Professor of Political Science and Faculty-in-Residence of the Dickinson Research Team (DiRT) at Binghamton University (SUNY). He holds a PhD in Political Science from Indiana University where his advisor was Nobel Laureate Elinor Ostrom. His research focuses on natural resource policy, particularly in domestic oil and gas production, but also extends into international environmental policy. He was PI on a National Science Foundation grant that utilized a 3000-person mail-based survey, several internet-based surveys, and a series of laboratory economics experiments to better understand Americans’ perspectives on energy production issues like oil drilling and wind farm development.
William Bianco (Research Director) is Professor of Political Science at Indiana University and Founding Director of the Indiana Political Analytics Workshop. He received his PhD from the University of Rochester. His teaching focuses on first-year students and the Introduction to American Government class, emphasizing quantitative literacy. He is the co-author of American Politics Today, an introductory textbook published by W. W. Norton now in its 8th edition, and authored a second textbook, American Politics: Strategy and Choice. His research program is on American politics, including Trust: Representatives and Constituents and numerous articles. He was also the PI or Co-PI for seven National Science Foundation grants and a current grant from the Russell Sage Foundation on the sources of inequalities in federal COVID assistance programs. His op-eds have been published in the Washington Post, the Indianapolis Star, Newsday, and other venues.
