Federal administrative agencies have never been more powerful.  They decide what permits farmers must obtain before they can plow their own fields, when a veteran’s benefits may be granted retroactively, what overtime laws apply to government contractors, and even what contraceptives must be included in employers’ insurance plans. In fact, it is difficult to count the number of agencies.  The Administrative Conference lists 115 agencies, FOIA.gov lists 252, the United States Government Manual lists 316, and USA.gov lists 443.  

Everyone loves the party game “Two Truths and a Lie.” Can you identify which of the following statements about administrative agencies is false? 

A. In our system of representative government, Congress alone makes the law, the President enforces or executes the law, and the Supreme Court interprets the law. 
B. Administrative agencies do twelve times as much law-making as Congress. 
C. The Chevron doctrine requires the judiciary to defer to an agency’s interpretation of federal law even when that interpretation is not the best one.  Further, the Supreme Court currently permits agencies to fill in the gaps of federal statutes so long as Congress has put forth an intelligible principle.  

Let’s take these statements one at a time:

A. LIE!  While this is how our government is supposed to function, and how the Constitution divides powers, a powerful “fourth branch” of government, referred to as the Administrative State, routinely performs all of these functions under one room.  Administrative agencies promulgate regulations with the force of law, and they both interpret and enforce those regulations. 

B. TRUTH!  In 2015 and 2016, for example, federal agencies promulgated about 7,000 final rules, while Congress enacted 329 public laws.  Agency rules have the force and effect of law.

C. TRUTH! In Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837 (1984), the Supreme Court held that federal courts are required to defer to an administrative agency’s interpretation of federal law.  Further, the agency’s interpretation does not have to be the most sensible one; it need only be a permissible one.  Since the 1930s, the Supreme Court has underenforced the nondelegation doctrine (the idea that Congress should not delegate its lawmaking authority) and allowed agencies to create federal policy so long as Congress lays out any guiding principle in a statute. 

Bottom line:  Administrative agencies govern every nook and cranny of daily life.  Two judicial doctrines (Chevron and the Court’s nonenforcement of the nondelegation doctrine) make it easier for agencies to create policy and interpret federal law, but recent decisions by the Supreme Court suggest the Court may be poised to rein in administrative agencies in the future.  For more information, check out IWF’s Legal Policy Focus on The Future of Administrative Law.