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.

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