On the other hand, other defenders of the administrative state have noted that regulation and administration played a relatively significant role in early American governance. In their view, the administrative state is consistent with the institutional framework of early American regulatory policy.
These two views are united in attempting to ground the legitimacy of the administrative state. But they are in disagreement about whether early American policy can serve as a guide to understanding the way the administrative state should operate today. The second position, which acknowledges the extent of regulation and administration in early America, has the better understanding of American history. Yet it draws the wrong conclusions from that history.
Instead of proving that the administrative state is consistent with early American approaches to administration, early examples of regulation show an alternative path. This alternative provides for regulation and administration, but within the basic framework established by the U.S. Constitution. This paper seeks to explain the early American approach to regulation and administration, which differed at the state and national levels, in order to show the basic parameters of this alternative approach to regulation in today's administrative state.
The modern administrative state is characterized by the exercise of expansive regulatory power by unelected administrative agencies. Its power is manifest through broad delegations of authority to administrative agencies by Congress, including a wide scope of agency discretion in policymaking. And the power of the modern administrative state is enhanced by judicial oversight based on a legal standard that too readily grants controlling deference to agency decisions, including judgments regarding the extent of the agency's jurisdiction.
The alternative approach to the administrative state is not unregulated,
policy with minimal government. But it is significantly different than the contemporary approach to regulation. It seeks to limit discretionary power and arbitrariness, by promoting accountability (through frequent elections of local administrative officers) and by checking and limiting power through law (as was the case with state and national administration in the early days of the Republic). In this alternative approach, power ought to be carefully limited by legislatures writing specific statutes that avoid delegating legislative power to administrative officers. And judicial review ought to undertake more exacting scrutiny to ensure that administrators exercise their authority in accordance with law. These legal doctrines have largely been abandoned today, as the nondelegation doctrine is rarely followed or enforced, and courts give deference to administrative interpretations of law under the so-called
This approach to limiting the often overweening reach of the modern administrative state not only would protect natural rights to life, liberty, and property consistent with the Founders' vision, but it is fully consistent with American constitutionalism properly understood.
* Joseph Postell is an Associate Professor of Political Science at the University of Colorado- Colorado Springs and a member of the Free State Foundation’s Board of Academic Advisors. The Free State Foundation is an independent, nonpartisan free-market oriented think tank located in Rockville, Maryland.
Prior Publications in this Series on Constitutionalizing the Administrative State
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