264 PART ThRee • InsTITuTIons oF AmeRIcAn GoveRnmenT
Enabling Legislation
A statute enacted by
Congress that authorizes
the creation of an
administrative agency
and specifies the name,
purpose, composition,
functions, and powers of
the agency being created.case involved an assistant district attorney, Richard Ceballos, who wrote a memo asking
if a county sheriff’s deputy had lied in a search warrant affidavit. Ceballos claimed that
he was subsequently demoted and denied a promotion. The outcome of the case turned
on whether an employee has a First Amendment right to criticize an employment-related
action. The Court deemed that when he wrote his memo, Ceballos was speaking as an
employee, not a citizen, and was thus subject to his employer’s disciplinary actions. The
ruling will affect millions of governmental employees.
Protecting whistleblowers was one of Barack Obama’s campaign promises in 2008. Yet
many observers believe that in practice the Obama administration’s record on whistleblow-
ers has been one of the worst ever. Under Obama, eight persons have been charged with
offenses under the Espionage Act, compared with none under President Bush. In some
cases, those charged may in fact have compromised national security by their revelations. In
others, however, the only apparent “damage” is embarrassment to the government.BuReAucRATs As
PolITIcIAns And PolIcymAkeRs
Because Congress is unable to oversee the day-to-day administration of its programs, it
must delegate certain powers to administrative agencies. Congress delegates power to
agencies through enabling legislation. For example, the Federal Trade Commission was
created by the Federal Trade Commission Act of 1914, the Equal Employment Opportunity
Commission was created by the Civil Rights Act of 1964, and the Occupational Safety and
Health Administration was created by the Occupational Safety and Health Act of 1970.
The enabling legislation generally specifies the name, purpose, composition, functions,
and powers of the agency.
In theory, the agencies should put into effect laws passed by Congress. Laws are often
drafted in such vague and general terms, however, that they provide limited guidance to
agency administrators as to how they should be implemented. This means that the agen-
cies themselves must decide how best to carry out the wishes of Congress.
The discretion given to administrative agencies is not accidental. Congress has long
realized that it lacks the technical expertise and the resources to monitor the implementa-
tion of its laws. Hence, administrative agencies are created to fill the gaps. This gap-filling
role requires an agency to formulate administrative rules (regulations) to put flesh on the
bones of the law. But it also forces the agency itself to become an unelected policymaker.The Rulemaking environment
Rulemaking does not occur in a vacuum. Suppose that Congress passes a new air- pollution
law. The Environmental Protection Agency (EPA) might decide to implement the new law
through a technical regulation on power-plant emissions. This proposed regulation would
be published in the Federal Register, a daily government publication, so that interested
parties would have an opportunity to comment on it. Individuals and companies that
opposed parts or all of the rule might then try to convince the EPA to revise or redraft
the regulation. Some parties might try to persuade the agency to withdraw the proposed
regulation altogether. In any event, the EPA would consider these comments in drafting
the final version of the regulation.Waiting Periods and court challenges. Once the final regulation has been pub-
lished in the Federal Register, there is a sixty-day waiting period before the rule can beLO5: Discuss how federal
agencies make rules and what the
role of Congress is in this process.
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