The Administrative State: The Lawmakers No One Votes For
The U.S. Constitution places the lawmaking power in the hands of Congress, the legislative branch. This ensures that the people making laws must answer to the voters. The president, the head of the executive branch, is supposed to enforce the laws, not make them.
The Constitution anticipates that he will have “officers” to help him enforce the laws to some extent. But in the last 200 years, the duties of those officers and their employees have metastasized into what some call the “administrative state.”
The “administrative state” typically describes the numerous agencies of the executive branch. The term also highlights the fact that we seem to be governed by unelected people instead of by Congress and the president. How did things change so much since the country’s founding?
The first thing to realize about the administrative state is that even though the executive branch started as just a few agencies, those agencies have multiplied exponentially. They include the U.S. Departments of Health and Human Services, of Education, of Labor, of the Treasury, of Agriculture, and many, many others. Some estimate there are well over 400 federal agencies.
The second thing to realize is that these agencies are engaging in legislative functions—they are making laws. Over many years, Congress has delegated its lawmaking authority to these executive branch agencies by passing laws that express a general idea—e.g., clean the water, expand health insurance—and that leave it to the agencies to say what the law specifically means in your lives and businesses.
The agencies often decide what your punishment will be for not complying with their rules, giving them wide discretion to impose ruinous fines and penalties. As everyday life and economic activity have become more complex, Congress has delegated more of its authority to these agencies and has enlarged these increasingly bloated bureaucracies.
The third thing to keep in mind is that these agencies also exercise enforcement and judicial functions. To protect our freedoms, the Constitution separates Congress, which makes the laws, from the president, who enforces them, and the Supreme Court, which interprets them. The Founders placed these branches in tension with each other so none could become too powerful. But modern administrative agencies usually do all three things at once. They make laws (which they call regulations), enforce them, and decide whether you violated those laws—all in one agency. And they do so with little or no internal check on how they restrict our freedoms.
This is the fourth aspect of the overgrown administrative state: agencies frequently do not answer even to the president. In many cases the president appoints the heads of these agencies, often the members of his Cabinet, and they are supposed to implement the president’s policies that govern the particular subject matter of their jurisdiction. But Congress also created “independent” agencies whose officers the president might not be able to appoint or remove. And even Cabinet agencies have become so large and powerful that many of their lifetime-tenured career staffers can ignore, obstruct, or undermine the priorities of the president without consequence.
All told, these aspects of the administrative state present a serious threat to liberty, democracy, and republican government. Though the bureaucrats employed by the administrative state create rules and regulations that affect many aspects of life in our country, there is often no accountability at the ballot box. No one governed by these rules and regulations gets to vote on who will be writing or enforcing them. Increasingly, the only recourse against the administrative state is to sue them—to take their actions to federal court, and eventually the Supreme Court.
Where did the administrative state come from?
The early 1900s saw the “progressive” political movement that began in Europe take root in the United States. The election of 1912 featured Republican incumbent William Howard Taft pitted against Democrat Woodrow Wilson and a third-party candidate, the former President Theodore Roosevelt. Wilson was elected.
A former president of Princeton University, Wilson had long been a proponent of progressive policies within education and implemented progressive policies as governor of New Jersey. Wilson believed in the notion that the challenges of modern life in America were more complex than the Founders could have anticipated and required experts in various fields to craft policy to address the problems of the modern world. In Wilson’s mind, ordinary men elected to Congress were ill-equipped to craft laws and policies sufficient to tasks at hand. This concept of an oligarchy of experts continued to develop under President Franklin D. Roosevelt.
During the Great Depression, Roosevelt enacted his “New Deal” for the American people. He sought and received authorization from Congress to create a myriad of federal programs and agencies to address the economic crisis. These agencies—such as the Tennessee Valley Authority, the Works Progress Administration, and the Civilian Conservation Corps—became known as the “alphabet soup” of government due to their nominal acronyms. In the years since Roosevelt’s New Deal, both Republican and Democratic presidents have expanded the administrative state by creating new federal agencies and increasing the number of career federal bureaucrats.
What are the important Supreme Court precedents regarding the administrative state?
There are several important Supreme Court cases dealing with the administrative state. A few are worth mentioning. The rise of independent agencies is traced to Humphrey's Executor v. United States, where the Court allowed Congress to say the president cannot remove officers of certain agencies, making those agencies’ actions less accountable to voters. The court gave agencies more power in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., where it said if an agency interprets one of Congress’s statutes, courts should generally defer to the agency, not independently decide what the law means.
But in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., the Supreme Court said that agency power to make rules is not absolute: regulations can be struck down if they violate rules in a statute called the Administrative Procedure Act (APA). The APA tells agencies they cannot act illegally, or arbitrarily, or without letting the public meaningfully participate in the creation of new rules. And in the recent decision West Virginia v. EPA, the Supreme Court confirmed that some decisions are so important that agencies cannot ordinarily make them—they need a clear law passed by Congress first.
What are government regulations?
Government regulations are the rules that federal government agencies create and enforce. When Congress acts through the legislative process outlined in the Constitution and sends a bill to the president for signature, the result is referred to as a new law or statute. When executive branch agencies publish rules and policies in accordance with the Administrative Procedure Act, the results are referred to as regulations.
The APA requires the agencies to first publish a proposed rule and allow public comment. Once the public comment period is over, the agency theoretically takes into consideration the public comments on the implications of the new rule before publishing the final rule. Because Congress has delegated its legislative power to agencies and empowered agencies to make regulations, agency regulations are binding on the public, just as if they were a law passed by Congress. That allows agencies to write their own laws—which lets them decide the policies and rules that everyone else has to follow.
What is regulatory overreach?
The phrase “regulatory overreach” is typically used to indicate that a federal agency has acted beyond the scope of its congressionally delegated authority. But regulatory overreach in a broader sense describes the voluminous number of federal regulations and their seemingly omnipresent intrusion into the daily lives of American citizens. A quick internet search demonstrates that The Code of Federal Regulations (CFR), updated each year, has grown to over 188,000 pages. Using a conservative estimate of 250 words per 8x11 page results in well over 47,000,000 words of rules enacted by unelected bureaucrats. By comparison, the King James Bible contains a mere 783,137 words.
What is ADF’s Regulatory Practice Team?
The federal administrative state’s overreach has posed a fundamental threat to all the freedoms ADF exists to protect. Experience has shown that such unchecked power in the hands of unaccountable bureaucrats often leads to radical, heavy-handed mandates that undermine the goal of protecting ADF’s clients and freedom generally.
The Regulatory Practice Team’s mission is to stop encroachment by federal executive branch officials and agencies—and instead to leverage the administrative state for good—for each of ADF’s Generational Wins. Like the Obama administration before it, the Biden administration has aggressively used federal agencies to encroach on the right to life and the rights of conscience, speech, and religion, as well as parental rights, often heedless of regulatory procedure or constitutional restraints.
The Regulatory Practice Team uses administrative law and structural constitutional doctrines such as separation of powers as additional tools in ADF’s legal effort to protect life, family, and freedom in conjunction with the First Amendment claims that ADF has litigated with great success for many years. Bringing administrative law claims can help create precedent that restrains the administrative state for the long term to enhance freedom for all Americans.
The stakes are high: one loss or one win on one regulatory issue can mean defeat or victory nationwide for decades. That’s why ADF has established a dedicated team of attorneys focused directly on countering the overreach of the administrative state.