Rule by the Unelected and Unconstitutional Administrative State

Rule by the Unelected and Unconstitutional Administrative State. By Ronald J. Pestritto.

The term “administrative state” has come to have a variety of meanings, but at its core it points to the situation in contemporary American government, created largely although not entirely by Franklin Roosevelt’s New Deal, whereby a large, unelected bureaucracy is empowered with significant governing authority.

The administrative state is incompatible with government by consent:

The fundamental question for many of those making reference to an “administrative state” is how it can be squared with government by consent and with the constitutional separation-of-powers system.

And incompatible with the the US Constitution:

Nominally, the agencies comprising the bureaucracy reside within the executive branch, but their powers transcend the traditional boundaries of executive power to include both legislative and judicial functions; these powers are often exercised in a manner largely independent of presidential control and of political control altogether.

Given the vast array of activities in which the national government has involved itself in the post-New Deal era, the political branches of government have come to rely heavily on the expertise of bureaucratic agencies, often ceding to them significant responsibility to set, execute, and adjudicate national policy.

As the constitutional branch tasked with making law, Congress has increasingly ceded this responsibility. The administrative state has stepped into the gap.

The difficulty with this state of affairs is that the administrative state coexists uneasily and often incoherently with the principles of constitutional government upon which the nation was founded and under which, at least in form, it continues to operate. …

This state of affairs is also evident from the tortured logic of federal court opinions, as judges must regularly bow to the reality of the administrative state while doing so within the formal framework of a legal or constitutional order that seems to provide little place for that reality.

These facts show us why the administrative state is bound up with the rise of progressivism, since the ideas of the progressives formed a foundation in the American political tradition for moving away from the principles and political science of the founding. …

The administrative state trashes the principle of separation of powers:

If the separation of powers means anything at all, it means that one branch of government may not permit its powers to be substantially exercised by another branch. … There may be no combination of functions within a single branch. As Madison, quoting Jefferson … elaborates:

The accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny.

Under this second tenet of the separation of powers, those making the law would also have to be subject to its being enforced upon them by an independent authority; those involved in execution could not make up the law as they went along, but would instead have to enforce laws that had been previously established by a separate authority; and those on whom the law was enforced could have their cases judged by an authority entirely separate from that which had brought prosecution. …

The Constitution grants all of “the executive power” to the president and requires him to “take care that the laws be faithfully executed.” Administration — as vigorous as some of the founders surely envisioned it — was thereby placed wholly within a single branch of government, and a clear line of political accountability for administrators was established.


For the American pioneers in progressive liberalism, this older, limited understanding of government stood in the way of the policy aims they believed the state ought to pursue in a world that had undergone significant evolution since the time of the founding. At the most fundamental level, therefore, the separation of powers was a deadly obstacle to the new liberalism, since it was an institutional system intended to keep the national government directed toward the relatively limited ends enumerated in the Constitution and the Declaration of Independence. …

The fathers of progressive liberalism envisioned a congressional delegation of regulatory power to an enlarged national administrative apparatus, which would be much more capable of managing the intricacies of a modern, complex economy because of its expertise and its ability to specialize. And because of the complexities involved with regulating a modern economy, it would be much more efficient for a single agency, with its expertise, to be made responsible within its area of competence for setting specific policies, investigating violations of those policies, and adjudicating disputes.



The fulfillment of progressivism’s administrative vision, therefore, required the evisceration of the non-delegation doctrine and the adoption of a combination of functions as an operating principle for administrative agencies. Furthermore, the progressives believed that administrative agencies would never be up to the mission they had in mind if those agencies remained subservient to national political institutions.

As if:

Since modern regulation was to be based upon expertise — which was, its founders argued, objective and politically neutral — administrators should be freed from political influence.

Thus the constitutional placement of administration within the executive and under the control of the president was a problem, as the progressives looked to insulate administrators not only from the chief executive but from politics altogether. …

On issue after issue now, the so-called experts are merely those chosen by the leftists to implement the left’s ideas — the carbon dioxide theory of global warming, or the vaccine-only response to covid, for example. The left controls who gets funded or appointed, via the administrative state, thereby setting public policy. Personnel is policy.

The biggest steps toward defeating separation-of-powers constitutionalism took place during the New Deal, which was animated by a strong optimism about the capabilities, public spiritedness, and objectivity of administrators. This optimism reflected the progressive political theory that had come at least a generation earlier; it was a manifestation of the idea of separating politics and administration, originated in America by Woodrow Wilson and Frank Goodnow — two of the founders of the administrative state as it exists today …

Politics, Goodnow explained, is “polluted” and full of “bias,” whereas administration is all about the “truth.” …

It is why we have in Goodnow’s thought the two pillars of today’s liberal state: unelected judges who make law through constitutional interpretation, and unelected bureaucrats to whom significant policy making power is delegated on the basis of their expertise.

In many areas now under government control, a particular organ of the administrative state — usually an “agency” — makes the rules, enforces the rules, and adjudicates the rules. Judge, jury and executioner, with effectively no democratic feedback. What better way to advance a totalitarian agenda on an unwilling  populace?