13.5: Making Rules

When Congress passes a law or the president issues an executive order, they don’t always specify how to enforce them. Many of those details are left up to the bureaucracy to determine. A healthcare bill, for example, might conclude by authorizing the Secretary of Health and Human Services to take steps to ensure that the specified policy changes be executed. The bill would tell the secretary what to do but not how to do it.

Bureaucratic agencies make rules to accomplish the tasks delegated to them by Congress and the president. This rulemaking typically happens through the notice and comment procedure, as outlined in the Administrative Procedure Act of 1946. First, an agency proposes a new rule and publishes its proposal in the Federal Register, thereby giving notice to the public. Members of the public (whether individual citizens, interest groups, or other organizations) may then comment on the proposal. The agency can then revise the rule based on those comments (though they need not accept every suggested change). The rule is then published again in the Federal Register, this time in its final form, after which it goes into effect.

The ability of the bureaucracy to establish policies in this way has both pluses and minuses. If the rulemaking agency is staffed by experts, it may bring with it the advantage of technocracy. By outsourcing the finer details to agencies with specialized expertise, Congress and the president can achieve better policies than if they tried to handle the nitty-gritty themselves. However, bureaucrats are unelected and thus not directly accountable to citizens at the ballot box. Excessive delegation by elected officials to the bureaucracy could enable the creation of a deep state deep state: A system of powerful bureaucratic actors who operate largely outside of the control by elected officials or the public. with the power to advance its own policy agenda, even if that agenda contradicts the will of the public and the politicians it elected.

Delegating to the bureaucracy can be especially fraught when the delegator’s intentions are unclear. For example, the Clean Air Act of 1963 required that new sources of air pollution be approved by the Environmental Protection Agency. The meaning of the word source in this law was unclear, and the EPA’s working definition of it changed from one presidential administration to the next. This led to the 1984 Supreme Court case Chevron, U.S.A., Inc. v. Natural Resources Defense Council, which established that courts should defer to the bureaucracy’s interpretation of statutes when determining whether its rules are consistent with them. The resulting doctrine, known as “Chevron deference,” gave bureaucratic agencies broad discretion in rulemaking. The Supreme Court eventually reversed Chevron in 2024, declaring in Loper Bright Enterprises v. Raimondo that the courts, not the bureaucracy, had the authority to interpret ambiguous laws.