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Discretionary and rulemaking authority of the federal bureaucracy

The U.S. Congress creates laws, but the bureaucracy, a part of the Executive Branch, implements them. The bureaucracy uses rulemaking and discretionary authority to do this. An example is Title IX, which prevents sex discrimination in education. The Department of Education enforces this law with its own rules and regulations.

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  • female robot grace style avatar for user Emma
    @ Is title IX an example of a mandate? It is where the government is trying to get state governments (through state school systems) to do something by controlling it based on funding. But would it count as a mandate?
    (3 votes)
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Video transcript

- [Instructor] 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 US Congress at the federal level, and if it passes both Houses of Congress, then the bill will go to the president, and if the president signs the bill or if the president vetoes the bill but then it gets overruled by Legislative, then, let's just assume that the president signs, signs the bill, then that bill becomes a law. It becomes a law. But the question is is how is this law actually implemented? And 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. And 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, bureaucracy, is going to implement the law, and they have different types of authority to do so. They have rulemaking authority, where for specific circumstances, they must say, "Hey. This is how it's going to work," that the law itself does not specify it, but based on what that law is trying to do, they are going to set some rules, and as we'll see, the people working inside the bureaucracy, many of whom are experts on whatever policy they are trying to implement have some discretion on how they actually implement this law. So their authority, sometimes you'll hear rulemaking authority and discretionary authority. And 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, and 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, becomes a law, but then how does this thing actually get implemented? And so this, as we've already talked about, is the job of the bureaucracy. And it's not just one department. Many departments of the federal government are going to have to think about how do they implement this statute right over here? And 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. And as I really think about what part of this really shows the bureaucracy's rulemaking authority and what part shows its discretionary authority? "Every application for Federal financial assistance "shall as 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. So in this document, the term applicant and recipient, these are the institutions that are either applying for federal assistance or have already received financial assistance and it's saying every application for Federal financial assistance shall as condition for its approval contain or be accompanied by an assurance from the applicant or recipient. So 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 rulemaking authority. And this is just one part of a much, much larger document full of rules on how just the Department of Education is thinking about Title IX. And these things have the rule of law, even though every detail here has not been passed through Congress. 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 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. So 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, but 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. And in order to do that, they make rules and regulations, and those rules and regulations also have the force of law. And top of that, there's going to be opportunities for them to exercise their discretion.