The administrative state — the executive branch agencies that make and enforce the regulatory decisions that govern most of American life — is under sustained political and legal challenge.
What the Administrative State Is
The administrative state is the collection of executive branch agencies — the EPA, the FTC, the SEC, the CFPB, the FDA, the NLRB, and the dozens of other regulatory agencies — that exercise the delegated legislative authority through which Congress's broad statutory mandates are translated into specific governance of economic and social behaviour. It is called the administrative state because it is, in practical terms, the governance infrastructure through which most American regulatory policy is made and enforced: through agency rulemaking, agency adjudication, agency enforcement, and the administrative expertise that formal legislation and judicial review alone cannot provide for the technical complexity of the regulatory domains these agencies govern.
The sustained political challenge to the administrative state is motivated by the specific actors who find agency regulation costly and the ideological framework that characterises delegation of legislative authority to agencies as constitutionally suspect. The sustained legal challenge — through the major questions doctrine, the nondelegation doctrine, and the various legal frameworks that courts have used to limit agency authority — reflects the Supreme Court's increasing willingness to constrain the scope of agency authority to act without explicit congressional authorisation for each significant regulatory decision.
The Governance Consequence
The combination of political and legal challenges to the administrative state is producing a governance consequence that its architects probably did not fully anticipate: if agencies cannot make significant regulatory decisions without explicit congressional authorisation for each decision, and if Congress cannot pass the specific legislation that explicit authorisation requires at the pace that regulatory governance demands, the governance capacity of the federal government for the complex, rapidly changing domains that agency regulation addresses will be substantially reduced.
The administrative state is under challenge from political and legal forces that have genuine concerns about its constitutional basis and genuine interests in limiting its regulatory reach. The governance consequence of a successful challenge — reduced federal capacity to regulate the complex economic and social domains that the administrative state currently governs — will be felt most acutely by the populations that depend on the protections that regulation provides.
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