America’s administrative state now wields vast power over nearly every aspect of daily life. From setting up a business to building a home to accessing contraceptives, it is often an administrative agency that writes, enforces, and adjudicates the legal standards that govern these activities. This legal brief explores the problem of governance by administrative agency. First, the brief highlights how often the legal rules that affect individuals and businesses are made, not by Congress, but instead by unelected administrators.
The brief then explores the Framers’ views of constitutional structure, and in particular, their understanding of separation of powers and nondelegation as necessary to preserving individual liberty. Next, the brief locates the origins of the administrative state in anti-constitutional progressive thought. For the Progressives, administration, rather than republicanism, was the key to good government. Because administrators were to be neutral experts, the Progressives designed administration to be unaccountable to elected officials. They wanted a different kind of government, one where republicanism—or governance by elected representatives—didn’t get in the way of efficiency.
Finally, the brief explains why the administrative state is in significant tension with the Founders’ Constitution. In particular, the current administrative state contravenes the limited government envisioned by the Founders by placing all of the government’s power in one branch, rather than in the three separate branches. This so-called Fourth Branch of government typically exercises legislative, executive, and judicial powers, and without much oversight by the elected branches. Further, broad and open-ended statutes passed by Congress give administrative agencies unheard of discretion to “write” the law. Practically speaking, the executive exercises little oversight over these agencies. And the Supreme Court has largely ceded the field when it comes to judicial review. While the Progressives did not care about upending the constitutional framework—they viewed the Constitution as a historical anachronism that must give way to more efficient administration—we should be wary of arguments and institutions that exchange liberty for efficiency. Though the vast size of our federal government makes it difficult to envision life without the administrative state, like the Founders, we should be concerned when government agencies ordinarily exercise all of the government’s power and are often practicably unaccountable to the people and their elected representatives.