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AP®︎/College US Government and Politics
Course: AP®︎/College US Government and Politics > Unit 2
Lesson 13: Discretionary and rule-making authorityDiscretionary and rulemaking authority of the federal bureaucracy
The video explains how the federal bureaucracy implements laws through rulemaking and discretionary authority. It highlights Title IX as an example, showing how the Department of Education creates rules and regulations to enforce the law. Bureaucrats use their expertise to exercise discretion in implementing laws, ensuring compliance with legislation.
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- @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? 3:38(2 votes)
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.