Administrative Discretion

It is important to understand the concept of administrative discretion, placing into perspective the powerful role administrative discretion plays in our political system. The traditional notion under our Constitution is that Congress shall make all laws (Article 1, Section 1). Yet the reality is that administrative law scholars have concluded that for many decades now our public administrators make over 90% of our laws (public policies), although they are technically called rules. Courts have held that these rules, made by discretionary agency actions, should nonetheless carry the force of law unless they are specifically prohibited by statute. As America grew from a small, agrarian society into a large, technologically complex industrialized society, it became clear that legislators at all levels of government did not have the time or possess the expertise to pass all of the comprehensive laws that were necessary to regulate America's socioeconomic and political activities. Consequently, legislators delegated broad legislative powers to our agency administrators and the concept of the powerful administrative state began to emerge. The power of agency administrators has grown at an accelerated pace because legislators, lacking the expertise to draft detailed legislation, have passed laws that allow administrators enormous administrative discretion to interpret and apply these skeletal laws. Democratic purists find that giving such vast discretionary powers to agency administrators challenges traditional democratic values, especially considering that our courts are very quick to grant extreme deference to the broad discretionary actions given to our public administrators by Congress and state legislative bodies.