The State of the Administrative State

Nondelegation, Power, and the Path Ahead

The Declaration decries “a jurisdiction foreign to our constitution, and unacknowledged by our laws.” Federal agencies too often fit this description. With major decisions reached this year, will the Supreme Court finally rein in the vast administrative state?

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Welcome back to Lex Liberas, home to newsletters and articles (like this one) exploring constitutional law and American liberty. My apologies for the late publication, but yesterday threw me for a loop. Anyway, I’m back at it and covering the administrative state. To continue reading my longest article of the year (to-date), please join the community and keep receiving my weekly posts:

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Perhaps no subject defines the unique quality of American government more than the separation and limitation of government power. Before the country was even founded, English philosopher John Locke observed that “the legislative neither must nor can transfer the power of making laws to any body else, or place it any where, but where the people have.”¹ During the Revolution, fought over separating power from the hands of a king, John Adams urged his fellow patriots as they wrote their state constitutions that “the judicial power ought to be distinct from both the legislative and executive.”² Volumes were written on the subject in debates at the Founding, flooding newspapers with entire dissertations on the question. Unanimously, the authors of the Constitution agreed with the Father of the Constitution when he penned his famous quote in Federalist 47:

“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."³

Under that definition, America has some work to do.