A paper in fulfillment of The U.S. Presidency, Congress & Bureaucracy at American Public University as part of the Master’s in Political Science (Public Policy).

Abstract

American constitutional government has long been threatened by an ever-expanding federal bureaucracy known as the administrative state.  This paper addresses the historical and ideological roots of the administrative state, its unconstitutionality as regards the separation of powers and checks and balances, and its burden on the economy through excessive regulation.  It concludes with a look at how the Trump administration has made a significant part of its agenda the reining in of the administrative state.

The Administrative State and Its Discontents

“Virtually every aspect of our daily lives is regulated to some degree by one or the other of the numerous administrative agencies that make up the national bureaucracy.  The powers of these agencies are extensive, being judicial and legislative in nature as well as executive.”[1]  These are the words of Peter Woll, writing on American bureaucracy in 1977 (originally published in 1963).  The regulation and power of these bureaucratic agencies, what has come to be known as the administrative state, has only grown, as I hope this paper makes clear, in the nearly 60 years since Woll’s striking remarks.

The administrative state is essentially the conglomeration of federal agencies, falling under the executive branch, that have, over time, exhibited the powers assigned to the three branches of government in the Constitution.  At base, this is an issue of constitutional neglect that betrays our representative government and the system of checks and balances, thereby bringing into question the security of our very freedoms.  This further manifests itself in unnecessary regulatory burdens on the economy.  In what follows, I argue that the administrative state betrays the constitutional structure and scope of the federal government and heaps regulatory burdens on the economy, thereby undercutting self-government and our freedoms.

Framing Up the Approach

It has rightly been noted that a proper address of and correction to the administrative state must not merely focus on the economic aspect of its reach (i.e. increased regulations and their burdensome effects).  Instead, what is needed is an address of and correction to the legal matter: “The legal critique more fully addresses the problem than does the economic protest,” says Philip Hamburger, “for although much administrative power is economically inefficient, all of it is unconstitutional.”[2]  I sympathize with Hamburger’s emphasis on the contravening nature of the administrative state.  The legal or constitutional aspect is the foundational issue.  That being said, I also recognize the strength of addressing economic regulations, because they are more tangibly felt in our every-day lives and occupy the concerned minds of the American people (see Fig. 1).[3]

Little Change in Americans' Perceptions of Government Regulation From 2016

Fig. 1. Source: Art Swift, “Americans’ Views on Government Regulation Remain Steady,” Gallup, 11 October 2017, https://news.gallup.com/poll/220400/americans-views-government-regulation-remain-steady.aspx.

Additionally, the economic issues often serve to illustrate the infringements on the Constitution, without which it can be difficult to wrap one’s head around the violations.  This paper will therefore address both aspects – the legal, or constitutional, and the economic.

The Historical and Ideological Roots of the Administrative State

An understanding of the historical and ideological roots of the administrative state is necessary to put things in proper perspective.  “How did we get here?” is just as important of a question as “Where are we?”.  Otherwise, we handicap ourselves in the attempt to diagnose the situation and think through potential solutions.

The administrative state is easily traced back to the New Deal under Franklin D. Roosevelt in the 1930’s, as it marked a period of extensive expansion of bureaucratic agencies in response to the Great Depression.  Its birth, however, goes farther back into the Progressive Era (1890-1920), with men like Woodrow Wilson and Frank Goodnow writing and teaching on the subject of administration.[4]

Many powerful new agencies were established during the Progressive Era, and particularly the Wilson presidency.  But after the First World War, and the election of Republican presidents Harding, Coolidge, and Hoover in the 1920s, it seemed as though the government might be returning to traditional constitutionalism.  However, with the Great Depression, the election of Franklin D. Roosevelt, and the popularity of the New Deal, the themes and goals of the Progressive movement returned.[5]

Woodrow Wilson, writing in 1887, well before his presidency (1913-1921), expressed his thoughts on the history, subject-matter, and method of administration in an article entitled “The Study of Administration”.  For one, he thought our Founders did not address the problem of administration precisely because the issue at the time was concentrated on “the constitution of government” (i.e. “Who shall make law, and what shall they be?”).  According to him, life was so much simpler then, and therefore so were the functions of government.[6]  This claim that an expanding administrative state comprised of elites was necessary due to our society becoming “more complex” is a common occurrence.  I find it difficult to believe, however, that our society became so complex that it required a multiplied growth in the federal workforce from around 500,000 in 1920 to around 3,000,000 after the New Deal.[7]  Is it instead perhaps that this “complexity” is the result of the federal government becoming too involved in our day-to-day lives?  Running and regulating virtually every area of society is a complex business – too complex, in fact, for a centralized organization. [Update: I tend toward this conclusion, at least in part, due to the Founders addressing the necessary role of administration but doing so in the context of the limited jurisdiction of the federal government (see “Federalist No. 72”). This limited jurisdiction is discussed in the next section. In other words, the Founders did not avoid the topic of administration, as Wilson seems to suggest. Rather, their idea of administration was not encompassing enough to include all of the functions that the progressives saw fit for an efficient government.]

Wilson seems to have lamented over the popular sovereignty of America’s constitutional form of government, protesting its slowness and proclivity to compromise.  Of course, the Founding Fathers saw this constitutional deliberation among a several-bodied government as a means of securing our liberties against totalitarian rule.  The progressives’ optimism regarding human development under democracy led them to advocate for (seemingly more) efficient and unelected administrators rather than see the need to safeguard the freedom of the people.[8]  Pestritto remarks, “Wilson saw the separation of powers as a hindrance because efficiency was to be valued over anything else.”[9]  This efficiency was to be found in the skilled administrators who would supposedly operate apart from politics, approaching society from a purely scientific and objective motive.

Again, Wilson remarked that the lack of progress in the past was largely due to “the single person who was sovereign was generally either selfish, ignorant, timid, or a fool, – albeit there was now and again one who was wise.”  So, what’s the cause for lack of progress today (under American government)?  In short, the stupidity of today’s sovereign – the people:

Nowadays the reason is that the many, the people, who are sovereign have no single ear which one can approach, and are selfish, ignorant, timid, stubborn, or foolish with the selfishnesses, the ignorances, the stubbornnesses, the timidities, or the follies of several thousand persons, – albeit there are hundreds who are wise.[10]

Another key progressive figure writing on administration was Frank Goodnow.  He thought the political philosophy of the American Founders regarding separation of powers and separate governmental branches, as articulated both in the constitutions of the states and the national Constitution, was an “extreme form” of Montesquieu’s theory and “has proven…to be unworkable as a legal principle”.[11]  Goodnow, like Wilson and progressives in general, thought the underlying issues of our government were the principles upon which it was founded – individual rights and the separation of powers. Pestritto remarks,

The focus of the Founders’ constitutionalism on government’s permanent duty to protect individual rights was an impediment to the marked expansion of governmental power that Progressives desired; thus, the ideas that animated the Founders’ conception of government had to be discredited.[12]

Goodnow referred to the function of administration as “quasi-judicial”.[13]  This is important in light of Chevron Deference, briefly discussed below, and the tendency of administrative agencies to engage in constitutional powers assigned to the three branches of government: legislative, executive, and judicial.  This quasi-judicial view of administrative agencies led Goodnow to advocate for “considerable permanence of tenure” among the “clerical and ministerial officers who simply carry out orders of superiors”.  In other words, he envisioned administrative agencies made up of tenured personnel.  Keep in mind, these administrators are unelected.  Granted, he did caution that such tenure be withheld from “executive officers to whom is entrusted the general execution of the law,” as the government would tend to “lose its popular character”.[14]

A Progressive thinker writing in 1918, Mary Follett, also objected to the political and moral principles of the American founding regarding rights, liberty, and equality as being natural.  Instead, she postulated a group or collective source for such rights, referring to it as the “group principle” which defines the “group-rights”.[15]  So, rights are neither natural nor individual.  Instead, they must be created: “The truth of the whole matter is that our only concern with ‘rights’ is not to protect them but to create them.”  And what is this ideal group that is to be entrusted with the creation of our rights?  In her mind, “the state is such a group”.[16]

In conclusion to this section, the ideological roots of the administrative state rests in the Progressive Era which constituted explicit rejections of our constitutional form of government and the political philosophy undergirding it.  Let us, then, take a closer look at the ramifications of this contrary political philosophy.

The Unconstitutional Nature of the Administrative State

The division of powers among the federal and state governments is perhaps the most abused aspect of our constitutional government.  It is not uncommon in our day for the citizenry to run with haste to the federal government after nearly any perceived social or political malady.  It has become second nature for the American people to think and react in this way, though it was not so with the Founders.  James Madison, in “Federalist No. 45,”[17] commented on the significance and place of both state and federal governments, placing the weight on the former:

The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security.[18]

According to Madison, the federal government is to focus on big picture, political issues, such as war and foreign negotiations, whereas state governments are to focus on the day-to-day issues – “the ordinary course of affairs”.[19]

The administrative state, with its ever-expanding reach into our lives, epitomizes big government under a democratic system.  While state governments of course still exist, they frequently operate under the watchful eye and influential hand of bureaucratic agencies.  Nebraska governor, Ben Nelson, said, “I honestly wondered if I was actually elected governor or just branch manager of the state of Nebraska for the federal government.”[20] Former Wyoming state legislator, Amy Edmonds, has noted the powerful influence the federal government has wielded in the area of education, essentially using “the federal purse to hammer states into submission.”[21]

Regarding the separation of powers, our Founding Fathers were clear: “the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time.”[22]  Regarding checks and balances, “its several constituent parts [i.e. the three branches] may, by their mutual relations, be the means of keeping each other in their proper places.”[23]  Yet, it is the mingling of these powers and the failure to check them that mark our day – indeed, the past several decades, at least.  Wallison points to Congress’s eroding influence and the presidency’s rise to prominence during the Progressive Era and the New Deal as the source of this turn away from constitutional checks and balances.[24]

After the New Deal, the president was a more dominant figure than before, and he commanded a government of agencies that also had considerably more power over economic decisions….  [The Democratic Congress, under LBJ, enacted] broadly worded legislation providing significant new powers to the executive that went well beyond the New Deal.  The War on Poverty, Medicare, and the Civil Rights Act are examples.[25]

Palpable examples of the administrative state’s transgression of these constitutional principles, amounting to what may simply be called federal overreach, can be seen in various cases of recent history.  Below is a summary of such ordeals.  At bottom, these serve as examples of bureaucratic agencies’ tendency to go beyond congressional acts and intentions, resulting in agencies creating and executing their own laws.

Title IX was established in 1972 as an education amendment that explicitly prohibited educational providers from discriminating against students on the basis of sex (obviously referring to the discrimination of women).  Yet, “In 1975 the predecessor of the Education Department issued a rule that applied Title IX to employment discrimination.”[26]  This was obviously an expansion upon the congressional statute.  The Education Department’s Office of Civil Rights (OCR) would expand this even further to apply to sexual harassment, with a loose definition.

In its 2013 agreement with the University of Montana, which the department referred to as ‘a blueprint for colleges and universities,’ the department and the university agreed that sexual harassment should be defined as ‘any unwelcome conduct of a sexual nature,’ and in an accompanying May 9, 2015, letter to the university, the Departments of Justice and Education noted that sexual harassment need not be ‘objectively offensive.’  Under this standard, the important question is whether the complainant was offended—and thus sexually harassed—not whether a reasonable person would be offended.[27]

Similar examples abound.  In 2015, the Equal Employment Opportunity Commission (EEOC) argued that a particular company’s recruitment efforts on college campuses qualified as a form of age discrimination.  The EPA and the Army Corps of Engineers broadened the definition of navigable waters to include ditches, ponds, streams, and wetlands.[28]  In 2016, the OCR used a “Dear Colleague” letter[29] to advise federally funded schools that funding would be dropped if transgender students were not allowed to use the bathroom of their choice. Wallison’s remark is pointed: “All these examples show that agencies of the administrative state believe they have considerable power to go beyond the language of the laws they enforce [as established by Congress].”[30]

This is largely due, as Wallison and many others have pointed out, to the 1984 case between Chevron U.S.A., Inc. and Natural Resources Defense Council, Inc., resulting in what’s known as Chevron Deference.  This judicial principle or doctrine essentially means the courts defer judgment to the administrative agency regarding the interpretation of legislation, assuming a “reasonable interpretation”.  “What it seems to mean is that administrative agencies may infer powers that Congress has not explicitly granted as long as that inference is ‘reasonable.’”[31]

Congress is also at fault here for taking the easy route of delegating its constitutional responsibilities to these administrative agencies by enacting “goals statutes” rather than “rules statutes”.[32]  The former is general in nature, full of gaps left to be filled by the latter.  Legislation, by definition, is rules statutes oriented.  However, Congress frequently enacts goals statutes, thereby delegating the more controversial and discretionary work of laying down rules to the agencies.  Wallison touches on the need of the courts to hold Congress accountable in this area.

Ironically, while a goals statute, like the Clean Air Act of 1970, allows Congress to avoid controversy and take the credit for enacting a politically popular law, it does not make use of the unique power of Congress to set arbitrary requirements that cannot be challenged in the courts.  As a result, while a goals statute can be more quickly enacted, it is likely to be less successful over time in reaching the policy objectives its sponsors desired.  Thus if the courts were to force Congress to enact rules statutes—by more frequently striking down delegations of legislative authority—it is likely that there would be less litigation about rules and more effective and expeditious enforcement.[33]

In conclusion to this section, the unconstitutional nature of the administrative state rests in the fact that these federal agencies implement rules statutes, which are of a legislative nature assigned to Congress alone, and operate in an ever-expanding jurisdiction beyond that marked off for the federal government in the Constitution.  With the power of the states being whittled away, America is being shaped into a nation characterized by a highly centralized government with the varied powers resting in the hands of a few “experts”.  Now would be a good time to reconsider the words of James Madison: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”[34]

The Economic Burden of the Administrative State

The number of regulations passed each year far surpasses the number of laws passed by Congress.[35]  While some regulation is certainly necessary, one does have to wonder about the high rate of regulation and the effects it has on businesses and the overall economy.  Is it really necessary that 3,000+ federal rules be added to the Federal Register each year, or are these just agencies trying to justify their existence?[36]  Wallison remarks, “The most likely explanation for why we have so many regulations is that we have so many administrative agencies; these agencies, in turn, believe that making new rules is necessary to show Congress how important they are.”[37]  Figures 2 and 3 show the continual rise in regulations and the number of pages that compose them.

Fig. 2 Source: Clyde Wayne Crews Jr., Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State—2019 Edition. https://cei.org/10KC/Chapter5

Regulatory schemes, such as licensing and complex reporting requirements, naturally produce restrictions on new entrants to an industry, tending to favor large corporations against the small guy.[38]  These tend to disrupt the discovery process of the unregulated market and heap costs upon businesses that now require the hiring of expensive lawyers or specialists to ensure they’re operating according to regulation.[39]  Who pays for this increase in costs?  Ultimately, the consumer.

Fig. 3 Source: Clyde Wayne Crews Jr., Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State—2019 Edition. https://cei.org/10KC/Chapter5

While numerous examples could be supplied, Wallison focuses on two regulatory agencies, now a thing of the past, as demonstrating the burden on the economy of overregulation and the benefits of deregulation: The Civil Aeronautics Board (CAB) and the Interstate Commerce Commission (ICC).  The usefulness in looking at these two agencies is the “before and after” effect.

“The CAB was responsible for airline rate and route regulation; under its control, fares were high, investment was low, and services on many routes outside the major cities were limited.”[40]  With the dismantling of this regulatory agency, competition increased and prices decreased, making it more affordable for entire families to fly.

The ICC was originally formed as a regulatory agency for the railroads.  With the rise of trucking threatening the railroads, however, the ICC broadened its reach to justify its continued existence and became a protectorate of the railroads, ultimately leading to arbitrary regulations and increased costs upon trucking.  Thomas Sowell details this at length.

The original rationale for regulating railroads was that these railroads were often monopolies in particular areas of the country, where there was only one rail line.  But now that trucking undermined that monopoly, by being able to go wherever there were roads, the response of the I.C.C. was not to say that the need for regulating transportation was now less urgent or perhaps even unnecessary.  Instead, it sought—and received from Congress—broader authority under the Motor Carrier Act of 1935, in order to restrict the activities of truckers.  This allowed railroads to survive under the new economic conditions, despite truck competition that was more efficient for various kinds of freight hauling and could therefore often charge lower prices than the railroads charged.  Trucks were now permitted to operate across state lines only if they had a certificate from the [ICC] declaring that the trucks’ activities served ‘public convenience and necessity’ as defined by the I.C.C.  This kept truckers from driving railroads into bankruptcy by taking away as many of their customers as they could have in an unregulated market….
While open and unfettered competition would have been economically beneficial to the society as a whole, such competition would have been politically threatening to the regulatory commission.[41]

Like the deregulation of the airlines, Wallison notes similar benefits of the deregulation of trucking in particular and interstate commerce in general: increased output and reduction in costs.[42]

In the ICC example we especially see how these agencies can tend to operate more like a business trying to survive in the market but have greater protection due to their governmental status.  Whereas businesses in the private sector have to operate on a profit/loss system, administrative agencies function on a completely different plain.

We always hear about the dreaded “market failure”.[43]  What we almost never hear about, though, is its big brother, “government failure”.  I would argue, if space allowed, that sometimes market failures are, in reality, government failures in need of a scapegoat.[44]  Of course, it’s also likely a question of proportions – what proportion was due to government intervention and what proportion was due to the market?

In conclusion to this section, the administrative agencies consistently add over 3,000 regulations to the Federal Register each year, far more than the number of congressional rules.  The sheer number of these regulations, as well as economic history (e.g. the ICC), suggests that these agencies are in constant need to justify their continued existence.  Excessive regulation burdens the economy with decreased efficiency, decreased competition, and increased costs.  Deregulation is therefore the answer to ensuring a prosperous economy (see the section below on “The Trump Administration and the Administrative State”).

Solutions: Navigating the Return Back to Constitutionalism

In seeing the ideological roots, the unconstitutional nature, and regulatory abuses and burdens of the administrative state, I think it’s safe to say that the notion of “government of the people, by the people, for the people,” as laid out in the Declaration of Independence, has transmogrified into something more aptly described as control of the people, by the administrators, for “your own good”.  So, what can be done to reverse this ominous overreach?  Following is a summary of what some have put forth as solutions, followed by a section on how the Trump administration has been taking efforts in this area.

Peter Wallison makes a strong case for the ball mainly residing in the judicial’s court (Pun?  Yes).  He remarks how this has been the constitutional role of the judicial branch all along: “In the Framers’ design, the judiciary has two distinct roles, as interpreters of the Constitution’s language and as defenders of the Constitution’s structure—or, as Hamilton put it, as ‘the guardians of the Constitution.’”[45]

McGroarty, Robbins, and Tuttle, are less optimistic about the courts reining in the administrative state: “The mass of problems is too great, and time too little, to expect the Supreme Court to reverse all its flawed decisions in a timely way.”[46]  Again, they remark, “There is simply little or no institutional backing for restoring the constitutional balance crafted by our Founders.”[47] Instead, they see the solution primarily resting with the people – “a citizen groundswell”.[48]

Hamburger, while noting both Congress’s and the courts’ clear role in the matter, nonetheless states it’s ultimately up to the people: “Ultimately, the defeat of administrative power will have to come from the people.  Only their spirit of liberty can move Congress, inspire the president, and brace the judges to do their duty.”[49]

What we have here is a call to return to constitutional accountability among the internal systems of our government, as well as self-government (government by the people) and civic responsibility.  I think what we can learn from the above is that there’s no easy fix.  A silver bullet solution is unlikely to be found here.  Instead, we must pool all available resources in this political fight to return our nation to the wise and prudent governmental structure set in place by our Founding Fathers for the representation of the people and the safeguarding of our liberties.

The Trump Administration and the Administrative State

This leads me to the work in this area that the Trump administration has been vigorously involved in since 2016.  Keep in mind that this is not going to fix all problems with the administrative state, but it is a step in the right direction.

Neomi Rao (Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, Executive Office of the President) gave a lecture at The Heritage Foundation in October 2017 on “The Administrative State and the Structure of the Constitution”.[50]  She remarked that their goal is to work towards “a much smaller and more effective regulatory state” and a “more accountable and responsive administration.”  Two noteworthy statements on the problems of regulation are as follows:

Far too many regulations are a solution in search of a problem rather than a response to an actual market failure, and what you see as excessive regulation often provides an advantage to large and well-connected businesses that can easily afford compliance costs, often at the expense of smaller or upstart companies [i.e. barriers to entry]….

Excessive regulation impedes individual liberty for all Americans.  It makes it harder to get a job.  It makes it harder to start and maintain a small business.  It makes ordinary goods and services much more expensive [i.e. excessive regulation increases costs for producers which are passed along to consumers].  And it limits the choices that we have in the marketplace [i.e. lack of competition and R&D].  We’ve also seen that very expansive social regulations can impede choices that are fundamental to religious exercise and to freedom of conscience [e.g. the expanding interpretation of Title IX].  So reducing these overall regulatory burdens is part of returning government to its proper and limited role and giving the American people greater control over their lives, their work, and their property [just as the Constitution makes explicit the limited jurisdiction of the federal government].

President Trump has taken steps to rein in the regulatory burden on America’s economy by issuing executive orders that established the elimination of at least two regulations for every new one.  Regulatory reform officers and task forces have also been assigned to each agency.  A total of 860 regulations that were in the pipeline were either removed or postponed.  “Much less and more effective regulation is an important goal of this Administration,” Rao noted as a fiscal year 2018 goal, “and it’s animated by these broader principles of individual liberty and more accountable government.”

Rao also spoke to the importance of judicial review in order to hold agencies accountable.  She remarked how fairly recent confirmations to the Supreme Court, “particularly Justices Thomas, Alito, and Gorsuch,” and we can now add Kavanaugh to that list, poises the Supreme Court for re-consideration of both the non-delegation doctrine and Chevron Deference.[51]  Interestingly enough, a February 2020 article in The Economist briefly discussed the deciding vote Chief Justice Roberts may have in brewing administrative matters, such as the constitutionality of the Consumer Financial Protection Bureau (CFPB) director’s removal being restricted to cases of misbehavior, bringing into question the ability of the president to exercise his executive power.[52]

It is uncertain whether attempts to rein in and deconstruct the administrative state by the Trump administration will result in successful outcomes in leaps and bounds.  What can’t be denied, however, is that steps are being taken and progress is being made.  Whether or not you are a fan or reluctant supporter of President Trump, if you’re a Constitutionalist, and therefore an opponent of the administrative state, this should be seen as a welcomed occurrence.


Bibliography

“The chief justice is poised to decide a clutch of controversies this spring,” The Economist, 29 February 2020, 22-23.

Goodnow, Frank J. Politics and Administration: A Study in Government. New York: The Macmillan Company, 1914.

Gwartney, James D., Richard L. Stroup, Dwight R. Lee, Tawni H. Ferrarini, and Joseph P. Calhoun. Common Sense Economics: What Everyone Should Know About Wealth and Prosperity. New York: St. Martin’s Press, 2016.

Hamburger, Philip. The Administrative Threat. New York: Encounter Books, 2017.

Hamilton, Alexander, John Jay, and James Madison. The Federalist Papers. New York: Signet Classics (New American Library), 1961.

McGroarty, Emmett, jane Robbins, and Erin Tuttle. Deconstructing the Administrative State: The Fight for Liberty. Florida: Liberty Hill Press, 2017.

Pestritto, Ronald J. “The Birth of the Administrative State: Where It Came From and What It Means for Limited Government.” The Heritage Foundation, First Principles Series, No. 16 (November 2007).

Rao, Neomi. “The Administrative State and the Structure of the Constitution.” The Heritage Foundation, No. 1288 (June 2018).

Schiff, Peter D. The Real Crash: America’s Coming Bankruptcy—How To Save Yourself and Your Country. New York: St. Martin’s Press, 2014.

Sowell, Thomas. Basic Economics: A Common Sense Guide to the Economy. 4th edition. New York: Basic Books, 2011.

Wallison, Peter J. Judicial Fortitude: The Last Chance to Rein in the Administrative State. New York: Encounter Books, 2018.

Wilson, Woodrow. “The Study of Administration.” Political Science Quarterly, Vol. II, No.2 (June 1887): 197-222.

Woll, Peter. American Bureaucracy: The Emergence of the Federal Bureaucracy as a Major Force in American Government and the Effect of Its Role on the Constitutional System of Checks and Balances. 2nd edition. New York: W. W. Norton & Company, 1977.

Woods Jr, Thomas E. Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse. DC: Regnery Publishing, Inc., 2009.


[1] Peter Woll, American Bureaucracy, 2nd ed. (NY: W. W. Norton & Company, Inc., 1977), vii.

[2] Philip Hamburger, The Administrative Threat (NY: Encounter Books, 2017), 2.

[3] A 2014 New York Times Poll showed 54% of those polled said over-regulation is interfering with economic growth, 38% said there is too little regulation, and 8% were undecided. Andrew Ross Sorkin and Megan Thee-Brenan, “Many Feel the American Dream Is Out of Reach, Poll Shows,” New York Times, 10 December 2014, https://dealbook.nytimes.com/2014/12/10/many-feel-the-american-dream-is-out-of-reach-poll-shows/?_r=1, last accessed on March 14, 2020.

[4] Ronald J. Pestritto, “The Birth of the Administrative State: Where It Came From and What It Means for Limited Government,” The Heritage Foundation, First Principles Series No. 16, 20 November 2007, https://www.heritage.org/political-process/report/the-birth-the-administrative-state-where-it-came-and-what-it-means-limited, last accessed on March 14, 2020, p. 1.

[5] Peter J. Wallison, Judicial Fortitude: The Last Chance to Rein in the Administrative State (NY: Encounter Books, 2018), xiii.

[6] Woodrow Wilson, “The Study of Administration,” Political Science Quarterly, June 1887, Vol. 2, No. 2.

[7] Wallison, Judicial Fortitude, 66.  See graph.

[8] Pestritto, “The Birth of the Administrative State.”

[9] Ibid.

[10] Wilson, “The Study of Administration”.

[11] Frank Goodnow, Politics and Administration: A Study in Government (NY: The Macmillan Company, 1900), reprinted 1914), 13-14.

[12] Pestritto, “The Birth of the Administrative State”.

[13] Goodnow, Politics and Administration, 76-79, 85.

[14] Ibid., 87-88.

[15] Mary Follett, The New State (1918), 46, http://www.channelingreality.com/Education/Mary_Parker_Follett_New_State.pdf, last accessed on March 15, 2020.

[16] Ibid., 47.

[17] All references from the Federalist Papers are from the Signet Classics version with introduction and notes by Charles R. Kesler (NY: New American Library, 1961).

[18] James Madison, “Federalist No. 45”.  Emphasis added.

[19] It should be noted that Madison mentioned the possibility of partiality shifting from the state governments to the federal government, but still asserts the limitation of the latter: “If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration as will overcome all their antecedent propensities.  And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.”  We have, of course, experienced such a shift.  Whether or not it is due to federal government being a “better administration” is certainly debatable, as I think this paper demonstrates.

[20] Quoted in Emmett McGroarty, Jane Robbins, and Erin Tuttle, Deconstructing the Administrative State: The Fight for Liberty (FL: Liberty Hill Press, 2017), 56-57.

[21] Ibid., 57.

[22] Madison, “Federalist No. 48”, 308.

[23] Madison, “Federalist No. 51”, 318.

[24] Wallison, Judicial Fortitude, 40.

[25] Ibid., 42.

[26] Ibid., 5.

[27] Ibid., 7.

[28] This may seem like a trivial matter; but such expansions not only bypass the constitutional limits of such agencies, it simultaneously infringes upon the jurisdiction of states and has the potential to infringe upon private property rights.  If federal agencies are willing and able to broaden their reach into such trivial matters, what areas of our lives won’t they try to regulate?

[29] These letters are roundabout rulemaking procedures that don’t quite have the force of law but are accompanied with threats and seek input after the fact of the position being established.  See Wallison, Judicial Fortitude, 5-7.

[30] Ibid., 16.

[31] Ibid., 138.  See also McGroarty, Robbins, and Tuttle, Deconstructing the Administrative State, 47-49.

[32] Ibid., 128-129.

[33] Ibid., 129.

[34] James Madison, “Federalist No. 47,” 298.

[35] James D. Gwartney, Richard L. Stroup, Dwight R. Lee, Tawni H. Ferrarini, and Joseph P. Calhoun, Common Sense Economics (NY: St. Martin’s Press, 2016), 165.

[36] Wallison, Judicial Fortitude, 77, 83.

[37] Ibid., 84.

[38] McGroarty, Robbins, Tuttle, Deconstructing the Administrative State, 285.

[39] Wallison, Judicial Fortitude, 85.

[40] Wallison, Judicial Fortitude, 103.

[41] Thomas Sowell, Basic Economics (NY: Basic Books, 2015), 158-159.

[42] Wallison, Judicial Fortitude, 104-105.

[43] Unfortunately, “market failure” is thrown around quite liberally, with apparently little thought to whether or not a market failure is truly at play or if there are underlying governmental regulations negatively influencing the situation.  One book that critiques numerous claims of market failure is Famous Fables of Economics: Myths of Market Failures, ed. Daniel Spulber (MA: Blackwell Publishers, 2002).

[44] As an example, the 2008 crash was repeatedly blamed on the “free market” by pundits on mainstream media outlets.  However, strong evidence points to this being a government failure, as demonstrated by Tom Woods in Meltdown (DC: Regnery Publishing, Inc.) and Peter Schiff in The Real Crash (NY: St. Martin’s Press, 2014).

[45] Wallison, Judicial Fortitude, 147.  Hamilton said, “But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.” Alexander Hamilton, “Federalist No. 78”, 468-469.

[46] McGroarty, Robbins, and Tuttle, Deconstructing the Administrative State, 312.

[47] Ibid., 314.  Even though they say this, one of their solutions is for the Supreme Court or Congress to work on reversing Chevron Deference.

[48] Ibid., 314.

[49] Hamburger, The Administrative Threat, 64.

[50] Neomi Rao, “The Administrative State and the Structure of the Constitution”, The Heritage Foundation No. 1288, 15 June 2018, https://www.heritage.org/the-constitution/report/the-administrative-state-and-the-structure-the-constitution, last accessed on March 17, 2020.  All further references, unless noted, are from this article.

[51] See also Wallison, Judicial Fortitude, 136.

[52] “The chief justice is poised to decide a clutch of controversies this spring,” The Federalist, 29 February 2020.