Placing the
Administrative State in Constitutional Context
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.
http://www.iwf.org/publications/2800714/Legal-Brief:-Placing-the-Administrative-State-in-Constitutional-Context
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