Chapter 7 focuses on the source of what most administrative law scholars call the real source of power for agency administrators—administrative discretion. The fact that public administrators have been delegated enormous discretion to make and implement public policies, and even adjudicate the fairness of their actions, challenges the rule of law and is disturbing to many observers such as Supreme Court Justice, Neil Gorsuch. It is stressed that administrative discretion challenges the rule of law and our traditional tripartite model of government because public administrators are not elected and therefore cannot be held democratically accountable like elected officials. Consequently, much focus is on how to keep public administrators democratically accountable. Scholars have offered many suggestions for structuring, confining, and checking discretion to promote democratic accountability in public administration. These suggestions are critiqued.

Previously, it has been made clear that public agencies exercise legislative, judicial, and administrative powers. How agencies exercise their legislative and judicial powers has already been covered. This chapter focuses on public administrators as they function in their traditional role as administrators of congressionally sanctioned public policies. Here the policy implementation powers of agency officials, especially in light of their broad discretionary authority, are described and critiqued. Because of the major role administrative discretion plays in administrative law, this entire chapter is devoted to discussing the use and misuse of discretionary power. Special attention is paid to how we can redesign discretionary agency actions to promote the rule of law and democratic accountability principles.