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Reining In The Administrative State

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The administrative state has increasingly grown powerful in day-to-day governance as the Congress, and the judicial branch has voluntarily ceded power over time. As a result, we have seen new regulations with minimum oversight and transparency. While the administrative state is an unavoidable consequence of our complex world, the administrative state must realign its interests with the public and the rule of law.

Discussion Questions

  1. Is the administrative state a legitimate part of the government?
  2. Are there any benefits of having an administrative state?
  3. Can the administrative be reined in?

Related Resources

  • To learn more, read “Reforming Administrative Law to Reflect Administrative Reality” by Adam White; available here.
  • Read “Trumping the Administrative State” by Adam White; available here.
  • Listen as Adam White 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; available here
  • In "Policy Reforms for an Accountable Administrative State", Adam White, Oren Cass, and Kevin R. Kosar, offer help to policymakers in Congress and the new administration as they take up the task of regulatory reform; available here.
View Transcript

When Congress passes laws, federal agencies like the EPA, the FCC, or the SEC translate them into practical rules and regulations. 

As we regulate more economic activity, these federal agencies take an ever-larger role in day-to-day governance. 

The consequence is a powerful, unelected, and largely unaccountable part of the government, called the administrative state. 

The growth of the administrative state isn’t an accident. 

Over time, our elected leaders in Congress have relinquished immense power to federal agencies; 

the judicial branch has given too much deference to federal agencies; 

and presidents, who oversee most agencies, have happily accepted the discretion they have been granted. 

The result is that agencies routinely create regulations with little oversight, transparency, or incentive to minimize the costs they impose. 

Reining in the administrative state will require Congress to reassert its constitutional authority as the branch that defines the scope of power agencies are allowed to use. 

And judges have to be more skeptical of an agency’s interpretation of laws – especially when the agency fails to consult with the individuals, businesses, and other stakeholders affected by its regulations. 

The administrative state is an unavoidable consequence of our complex world, but that doesn’t mean we shouldn’t hold it accountable and realign its interests with those of the public.