The tension between executive and legislative powers is as old as the American republic. But the debate over the president’s power to decide how and when to enact federal statutes using executive agencies has become more heated as the number and influence of those agencies has grown in size, number, and scope.
Until recently, many critics focused especially on economic questions, such as “How does the regulatory state impact business or innovation?”, with defenders pointing to the need for an executive that can act swiftly to address complex and urgent problems of public concern — whether bearing on the economy, public health, or the environment — by imposing regulations formulated by domain experts. In recent years, however, commentators on both the Left and Right have been wrestling more and more with the political and legal question of the executive’s proper role. The administrative state — the president’s most effective tool for exercising power in domestic affairs — is key here.
Under the Obama administration, such debates reached a fever pitch among conservatives and libertarians in light of the president’s use of executive power to implement parts of his domestic agenda. Today, critics of President Trump from both sides of the political aisle have homed in on the need to restrain executive power. Meanwhile, White House Chief Strategist Steve Bannon has said that the “deconstruction” of the administrative state is among the primary goals of Trump’s presidency.
What, exactly, is the administrative state? Where and how does it fit into our political system? Is it necessary or harmful in modern political life? How does support for or skepticism of administrative power map onto our current political divisions? What is the future of the administrative state in our populist era? This is the topic of our new podcast, “The Future of the Administrative State,” which explores the virtues and vices of administrative power at a time when both Right and Left fear a growing executive branch.
In the first episode, Adam J. White of the Hoover Institution breaks down the meaning of the administrative state and how it functions, touching on the underlying constitutional issues, the Obama administration’s use of executive actions, and what we might expect from President Trump.
According to White, the term “administrative state” is used in different ways. In a straightforward sense, it simply refers to the group of federal agencies tasked with carrying out the executive branch’s constitutional duty to execute the laws passed by Congress. Such agencies have existed for as long as our Republic, of course, but they have multiplied and grown over the centuries. During the last century, in particular, administrative agencies — think of the Securities and Exchange Commission, the Federal Communications Commission, the Food and Drug Administration, or the Environmental Protection Agency — were empowered by Congress to formulate federal rules and regulations that carry the force of law.
While overseen by Congress along with the president and presidential appointees, today’s administrative agencies effectively possess the power to create and enforce (and sometimes even adjudicate) law — despite being part of the executive (rather than the legislature or judiciary). For this reason, the administrative state is sometimes called the “fourth branch of government,” a governmental body not envisioned by the Constitution. In this latter sense, White argues, the administrative state refers to “a general approach to governance in the United States — an approach in which, by and large, the federal laws that govern us on a day-to-day basis come not from Congress with the president’s signature, but from this massive set of agencies.” The administrative state in this sense is not merely a collection of federal agencies so much as an “alternative to the Constitution’s framers’ vision of republican self-governance, governance through the elected branches of government under the rule of law.” According to White, we have arguably “gone from a republican or democratic state…to an administrative state.”
This move presents some potential constitutional problems, especially concerning the separation of powers. With emboldened executive agencies, Congress can delegate — or even “dodge” — its proper legislative duties by passing ambiguous statutes and allowing administrative agencies to fill in the details. This, White argues, allows members of Congress
to take credit for things like clean air and clean water, because of these very broad statues…but then those same Congressman can turn around anytime an agency exercises that immense power in a way that’s political unpalatable and…blame the agencies and not take any responsibility.
From a constitutional perspective, the problem is that Congress, not the executive, is empowered to create laws.
Another constitutional matter that features prominently in recent debates about administrative law concerns judicial deference. Federal courts have an established policy of deferring to administrative agencies when interpreting ambiguous statutes. The rationale here is that agencies, staffed as they are with subject matter experts, are more knowledgeable about the relevant issues than the courts. But some conservative critics worry that this trend has simply empowered administrative agencies to take on the judiciary’s constitutional role as well — that of interpreting the law.
The election of Donald Trump has thrust this relatively obscure debate about the constitutionality of administrative law into the limelight, and has alerted some on the Left to the dangers of executive power. President Trump, meanwhile, has made rolling back Obama-era regulations a centerpiece of his administration. White hopes that the current administration will continue to take steps to reform the administrative state. At the same time, he wonders whether the colder-than-usual relationship between our GOP Congress and our Republican President might encourage legislators to “think of themselves more as congressman first rather than the president’s own teammates,” allowing Congress thereby to reclaim its proper role as the first branch of government.
In our era of heightened partisanship, could the administrative state prove an unlikely rallying point for a bipartisan revival of constitutionalism?
M. Anthony Mills is editor of RealClearPolicy.