From Administrative State to Constitutional Government

Summary of Study

Bottom Line: Professor Joseph Postell argues that the modern administrative state, a group of politically unaccountable agencies and departments staffed with experts with all three powers of government – legislative, executive, and judicial – at their disposal, represents a clear alternative system of governance to the one established under the U.S. Constitution. He proposes to reform the administrative state to ensure that the federal government operates according to the constitutional system the American Founders set in place.

The modern administrative state that governs in America today is in essence a fourth branch of government that is composed of agencies and departments staffed with impartial experts who hold all three powers of government. The administrative state includes parts of departments such as the Occupational Safety and Health Administration, located in the Department of Labor, and the Fish and Wildlife Service, located in the Department of the Interior, along with independent regulatory agencies such as the Federal Trade Commission, Environmental Protection Agency, and the Federal Communications Commission.

According to Postell, this model of governing is a clear rejection of the system of government established under the U.S. Constitution.

Early Progressives such as Presidents Theodore Roosevelt and Woodrow Wilson set up a myriad of independent agencies such as the Food and Drug Administration and the Federal Trade Commission that held broad powers to reform areas of public concern in American life. Combined with efforts for civil service reform, which began in the late nineteenth century, Congress delegated these new agencies powers that the Constitution had reserved only for the legislative branch.

As Postell argues, the problems in this alternative system of governance include putting the three powers of government into the same hands, which James Madison called the very definition of tyranny; violating Article I of the Constitution by allowing the legislature to delegate its powers to other branches; rejecting the principle that just government is based, directly or indirectly, upon the consent of the governed and that laws are to be made only by representatives of the people who are directly accountable to voters; and the presence of judicial bodies in many agencies, thus violating the principle of the separation of powers.

In order to reform the administrative state, Postell posits that the authority these agencies possess must be clearly defined in law. Article III courts, not administrative courts, should issue rulings on regulations, and local officials should have far more authority than the federal government to control areas of public policy. Congress, the executive, and the judiciary all have a role to play in curbing the administrative state and ensuring that the federal government operates according to the strictures of the U.S. Constitution.

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