Administrative discretion is the room federal agencies have to make choices Congress did not specify — which contractors to hire, what performance metrics to set, how to schedule rulemakings — within the statute that authorizes the agency to act. Discretion is real and necessary, but courts have repeatedly held it has limits: an agency cannot use "discretion" to nullify a program Congress funded or to refuse to act when a statute commands action.
The 2025 Job Corps litigation tested this line directly. Labor Secretary Lori Chavez-DeRemer announced she would "pause" 99 of 123 Job Corps centers as a discretionary administrative decision. Plaintiffs argued — and Judge Andrew Carter Jr. agreed in granting a preliminary injunction — that closing the centers functions as program termination, which WIOA reserves to Congress. The court read discretion narrowly: choosing how to run a program is administrative; choosing whether to run it is legislative.
Contested cases involve Chevron deference (now narrowed by the 2024 Loper Bright decision), the major questions doctrine, and "arbitrary and capricious" review under the Administrative Procedure Act. Each doctrine answers a different version of the same question — how much can an agency do that the statute doesn''t explicitly authorize?
When agencies stretch discretion to end programs, they shift power from elected lawmakers to appointed officials. Courts deciding how far discretion extends are deciding who actually governs.
People often think agencies can do whatever isn't forbidden. In practice, they can only do what a statute permits, and courts can strike actions that nullify the statute's purpose.
When agencies stretch discretion to end programs, they shift power from elected lawmakers to appointed officials. Courts deciding how far discretion extends are deciding who actually governs.
People often think agencies can do whatever isn't forbidden. In practice, they can only do what a statute permits, and courts can strike actions that nullify the statute's purpose.