Become part of the movement for unbiased, accessible election information. Donate today.
Arguments about the administrative state
| What are the five pillars of the administrative state? Ballotpedia's five pillars of the administrative state provide a framework for understanding the authority, influence, and actions of administrative agencies, as well as the policies and arguments surrounding them. The five pillars focus on the control of administrative agencies related to the (1) legislative, (2) executive, and (3) judicial branches of government, (4) the public, and (5) other agencies or sub-agencies. |
| Administrative State |
|---|
|
| Five Pillars of the Administrative State |
| •Agency control • Executive control • Judicial control •Legislative control • Public Control |
| Click here for more coverage of the administrative state on Ballotpedia.
|
| Click here to access Ballotpedia's administrative state legislation tracker. |
Scholars and observers debate the appropriate scope of agency authority in policymaking and implementation. The discussion divides between those who support expanding agency power, citing expertise, efficiency, and responsiveness, and those who favor limiting it, emphasizing accountability, transparency, and the risks of regulatory overreach. These arguments address questions of accountability, regulatory burden, efficiency, and the proper role of agencies in governance.
Arguments for expanding agency authority
Supporters of a more influential role for agencies argue that agencies are well-positioned to carry out complex government functions, such as administering social services, managing infrastructure programs, and enforcing health, safety, and environmental regulations. They contend that agencies develop specialized knowledge that enables them to craft more effective, responsive, and technically sound policies than legislatures or executives working alone. From this perspective, agency-led regulation allows for consistent and efficient implementation of broad policy goals and can help governments respond flexibly to emerging issues and complex challenges. Proponents often see agencies as essential to delivering public services and protecting the public interest in a modern regulatory state.
Arguments for limiting agency authority
Those who argue for reducing agency power focus on concerns about accountability, regulatory overreach, and the long-term burden of expanding agency rulemaking. Critics claim that agencies often operate with limited oversight, making decisions that significantly affect individuals, businesses, and local governments without sufficient transparency or democratic input. They argue that concentrating policymaking authority in administrative agencies undermines public control and increases the risk of bureaucratic overreach. Over time, the cumulative effect of agency regulations can impose substantial compliance costs, stifle innovation, and limit individual and economic freedoms. These critics call for scaling back agency influence in favor of more direct control by elected lawmakers and clearer limits on the scope of agency action.
The scope of due process and procedural rights in the administrative state is contested. Debates focus on constitutional and statutory requirements and on the extent of protections afforded to individuals interacting with agencies. These debates are commonly framed around three contexts: standing to challenge agency actions, due process in agency adjudication, and judicial review of agency decisions.
Arguments in favor of broad standing to challenge agency actions
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Standing is subjective
- Claim: The subjectivity of standing supports its broad interpretation
- Claim: Standing is subjective because it is a judicial construct aimed at a particular outcome
2. Argument: Broad standing is democratic
- Claim: Broad standing promotes democratic accountability
- Claim: Broad standing allows majorities to seek judicial review of injuries
- Claim: Broad standing allows citizens to challenge agency decisions not to act
3. Argument: Broad standing is constitutional
4. Argument: Broad standing has historical foundations
- Claim: English common law shows that a personal claim of injury was not required to receive standing
- Claim: Limits on standing developed recently and should be challenged
Arguments in favor of limited standing to challenge agency actions
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Limits on standing protect minority rights
- Claim: Limits on standing allow the judiciary to protect the rights of the minority
- Claim: The protection of majority rights should be the responsibility of the political branches, not the courts
- Claim: Limits on standing reserve judicial review for individuals with specific injuries rather than general concerns
2. Argument: Limits on standing support the separation of powers
- Claim: Limits on standing prevent the transfer of the executive power to manage the administrative state to the judiciary
- Claim: Limits on standing prevent judicial overreach
- Claim: Limits on standing safeguard the executive's enforcement authority
3. Argument: Limits on standing promote agency efficiency
4. Argument: Limits on standing strengthen political accountability
Arguments in favor of increased due process protections and procedural rights in agency adjudication
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Due process protections in agency adjudication are unconstitutionally insufficient
- Claim: Adjudication denies constitutional due process protections
- Claim: Adjudication that denies the right to open proceedings fails to satisfy due process
- Claim: Adjudication denies fair notice in criminal proceedings
- Claim: Agency administrative judges are partial to the government in violation of due process
- Claim: Reversal of the burden of proof denies due process by favoring the government
- Claim: Discovery in adjudication favors the government
- Claim: Adjudication requires unconstitutional self-incrimination in criminal proceedings
- Claim: Adjudication denies the right to a jury
2. Argument: Informal adjudication weakens due process
3. Argument: Only APA-qualified ALJs should adjudicate disputes
Arguments in favor of existing due process protections and procedural rights in agency adjudication
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Agency adjudication satisfies due process
- Claim: Due process is satisfied if APA procedures are followed
- Claim: Due process is satisfied if a hearing is held
- Claim: Informal adjudication sets a minimum procedural floor that satisfies due process
- Claim: Adjudication procedures that resemble other commonly used adjudication procedures satisfy due process
- Claim: Adjudication procedures that minimize error costs satisfy due process
- Claim: The use of administrative judges satisfies due process because informal adjudication does not require the use of administrative law judges
- Claim: The constitutional privilege against self-incrimination does not apply to adjudication
- Claim: Open proceedings are not required in agency adjudication
- Claim: A jury is not required to satisfy due process when the executive acts to enforce public rights
3. Argument: Due process requirements are not uniform
Arguments in favor of broad appeals of agency actions to Article III courts
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Due process is strengthened by the broad ability to appeal agency actions
2. Argument: Broad appeals to Article III courts increase agency accountability
- Claim: Article III courts promote public oversight of agency activity
- Claim: Broad appeals of agency action to Article III courts increase opportunities for judicial review of agency action
Arguments in favor of limited appeals of agency actions to Article III courts
- Click the arrow (▼) in the list below to see claims under each argument.
2. Argument: Limited appeals of agency action to Article III courts conserve judicial resources
3. Argument: Limited appeals of agency action to Article III courts protect statutory intent
The appropriate degree of control over administrative agencies is a subject of debate within the administrative state. Disagreement centers on the qualifications of agency employees, the relationship between agencies and the constitutional order, the requirements imposed by the Administrative Procedure Act, and the mechanisms for ensuring political accountability. These debates are commonly organized into four areas: arguments related to agency employee qualifications, arguments related to agency interaction with the constitutional order, arguments related to the Administrative Procedure Act, and arguments related to agency political accountability.
Arguments related to agency employee qualifications
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Agency expertise strengthens public policy
2. Argument: Agency expertise contributes to regulatory stagnation
3. Argument: Administrative judges lack the expertise to preside over adjudication
4. Argument: Administrative judges' expertise meets the demand for adjudicative roles
Arguments related to agency interaction with the constitutional order
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Agency adjudication violates the separation of powers
2. Argument: Agency adjudication does not violate the separation of powers
- Claim: The combination of functions within agencies does not create an unconstitutional risk of bias
Arguments related to the Administrative Procedure Act
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Informal procedures are insufficient to govern agency action
- Claim: Informal rulemaking fuels the growth of the administrative state
- Claim: Informal rulemaking lacks sufficient procedural protections
2. Argument: Informal procedures are sufficient to govern agency action
- Claim: The U.S. Supreme Court supports the increased use of informal adjudication
- Claim: Administrative Conference of the United States supports increased use of informal rulemaking
3. Argument: The Administrative Procedure Act is out of date and should be modernized
- Claim: The APA does not reflect current agency practices
- Claim: Calls for APA reform date to the mid-twentieth century
5. Argument: Agency theory and practice should align
- Claim: Agencies sidestep the rulemaking process by setting policy through adjudication
- Claim: Agencies abuse guidance to issue binding regulations
Arguments related to agency political accountability
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Agencies are accountable to the executive and legislative branches
3. Argument: Agencies operate outside of the bounds of political control
4. Argument: Independent agencies are politically accountable
- Claim: Cause-removal protections prevent the executive from controlling independent agencies
- Claim: Independent agencies evade political accountability by circumventing OIRA review
The appropriate scope of congressional delegation in the administrative state is contested, with debates centering on constitutional limits, separation of powers, and the need for flexibility in governance. These debates are commonly framed around three contexts: arguments in favor of the nondelegation doctrine and against delegation, arguments against the nondelegation doctrine and in favor of delegation, and line-drawing arguments over what constitutes a permissible versus impermissible delegation of authority.
Arguments in favor of the nondelegation doctrine, and against delegation
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Delegation violates the separation of powers
- Claim: the three governmental powers are distinct, and should be treated that way
- Claim: It was the goal of the framers to restrain governmental abuse and promote liberty through a robust nondelegation doctrine
2. Argument: Delegation undermines public accountability
3. Argument: Delegation is wrong because it is unconstitutional
- Claim: It is forbidden by the Vesting Clause
- Claim: Nondelegation is a universally recognized principle
4. Argument: Delegation violates social compact theory
Arguments against the nondelegation doctrine, and in favor of delegation
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: The Constitution does not explicitly forbid delegating legislative power
2. Argument: Rulemaking is not the same as lawmaking
3. Argument: U.S. Supreme Court has upheld virtually every statute challenged on nondelegation grounds
4. Argument: Agency law rules permit delegation
5. Argument: Increasing complexity of society requires Congress to delegate to do its job
- Claim: Agency rulemaking is required to achieve Americans’ goals
- Claim: The American people want an active federal government
- Claim: Delegation makes the administrative state constitutionally mandatory
- Claim: Congress cannot effectively issue major rules
7. Argument: Advocates of the nondelegation doctrine really just oppose expansive federal regulations
- Claim: Statutes giving open-ended authority provide for the exercise of executive or judicial power
- Claim: Legislative power refers to the authority to cast a vote in Congress and not the authority to make law
Line-drawing arguments concerning the nondelegation doctrine
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Defining legislative authority
- Claim: Legislative authority is the power to fashion legally binding rules
- Claim: Legislative authority is the power to vote in Congress
- Claim: Legislative authority is the power to make laws
2. Argument: Permissible vs. impermissible delegations
- Claim: Delegation lines drawn by the United States Supreme Court
- Claim: Delegation lines drawn by the U.S. Constitution
- Claim: Contingent legislation: identifying the line between implementation and regulation
- Claim: Rules vs. goals statutes: demarcating permissible and impermissible delegations
The appropriate role of judicial deference in the administrative state is a contested issue, focusing on the balance between agency expertise, congressional delegation, and constitutional separation of powers. The debate is generally framed in two areas: arguments against judicial deference, which view it as unconstitutional, contrary to precedent, and inconsistent with separation of powers, and arguments in favor of judicial deference, which emphasize respect for agency expertise, recognition of legislative delegation, constitutional grounding, and adherence to established legal practices.
Arguments in favor of judicial deference Arguments against judicial deference
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Deference is unconstitutional
- Claim: Article III forbids courts from exercising deference
- Claim: Chevron deference creates opportunities for systemic bias
- Claim: Deference prevents judicial review
- Claim: Chevron deference violates the nondelegation doctrine
2. Argument: Deference violates separation of powers principles
- Claim: Deference violates the separation of powers
- Claim: Auer deference violates separation of powers
3. Argument: Deference violates legal practices and precedent
- Claim: Chevron (1984) was a break from the legal practice of the early American Republic
- Claim: Precedents establishing the scope of the writ of mandamus cut against the Chevron doctrine
- Claim: The APA was created with the idea that questions of law would be subject to de novo judicial review and limit judicial deference
- Claim: Deference abandons a legal-interpretive tradition dating to 17th-Century English courts
- Claim: The use of Chevron deference to defer to an agency’s informal adjudication procedures denies due process
4. Argument: Deference is the product of bad jurisprudence
Arguments in favor of judicial deference
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Deference respects expertise
- Claim: Deference allows for expertise
- Claim: Agencies have the discretion to consider relevant factors during decision making
2. Argument: Deference produces better outcomes
- Claim: Chevron deference is better than a case-by-case approach
- Claim: Chevron doctrine allows for agency flexibility
3. Argument: Deference is constitutional
- Claim: Chevron deference does not create judicial bias in favor of agencies
- Claim: The nondelegation doctrine allows Chevron deference
- Claim: Judges may evaluate policy outcomes to make decisions
- Claim: Chevron reconciles the administrative state with constitutional law principles
4. Argument: Deference recognizes congressional delegations of authority to agencies
- Claim: Statutory ambiguity should be understood as a delegation of authority
- Claim: Sometimes courts fulfill their judicial duty by interpreting ambiguous statutes as vesting power in agencies
5. Argument: Deference is required by separation of powers
6. Argument: Deference adheres to legal practices and precedent
- Claim: Chevron (1984) did not make new law
- Claim: Chevron is a legitimate framework built on the tradition of deference in mandamus cases
- Claim: Deference is the law under the APA
- Claim: United States Supreme Court precedents deferring to agency factual determinations led to deferring to legal determinations
- Claim: Arbitrary-and-capricious review requires less of agencies than some judges believe
The scope of executive control over agency leadership through appointment and removal powers is a subject of debate in the administrative state. Supporters of strong presidential authority argue that broad appointment and removal powers promote good government and reflect the Constitution’s original design. Opponents contend that restrictions on these powers are themselves constitutional, better suited to changing historical circumstances, and necessary to ensure good government.
Arguments in favor of strong executive appointment and removal power
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Strong executive appointment and removal powers promote good government
- Claim: The removal power allows presidents to control administrative agencies
- Claim: The appointment power allows presidents to control administrative agencies
- Claim: Presidents have a better perspective on when officers should be removed than the Senate
- Claim: Presidential removal powers make the president accountable to the people
- Claim: At will tenure for agency officials helps courts promote stability and good government
- Claim: Bureaucrats insulated from the threat of presidential removal might become less motivated
- Claim: Presidents and other executives can implement their agendas if they do not face appointment or removal power restrictions
- Claim: Partisan balance requirements can limit agency effectiveness
2. Argument: Strong presidential removal power honors the original constitutional design
- Claim: Restrictions on the presidential removal power change the balance of powers under the U.S. Constitution
- Claim: Restrictions on the president’s appointment or removal power are unconstitutional
- Claim: It is a mistake to imply restraints on presidential control of agencies where the law is silent
Arguments against strong executive appointment and removal power
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Restrictions on the executive appointment and removal power promote good government
- Claim: Allowing the Senate to serve as a check on the president’s removal power would promote consistency in the administration of federal laws
- Claim: Requiring presidents to have good cause before removing officials promotes technical expertise and non-political administration of the laws
- Claim: Prescribing tenure of office for agency officials yields better administration of laws
- Claim: Partisan balance requirements for agency officials yield better results
- Claim: Restrictions on presidential control of agencies make officers more responsible for decisions
- Claim: Insulating agencies from at-will removal by the president slows the expansion of executive power
- Claim: Removal power is not an effective way for presidents to exercise political control over agencies
- Claim: Judicial interventions that promote the removal power can be harmful for democratic accountability
- Claim: Strong removal power is not required for the president to control agencies
- Claim: Exercising strong removal power can have political costs for the president
- Claim: Even though some statutes governing the president’s appointment and removal powers might violate the original understanding of that power, they are supported by longstanding congressional and presidential practice
- Claim: Restrictions on the removal power recognize that the federal government has to change with the times in order to promote efficiency and prevent tyranny
3. Argument: Restrictions on presidential appointment and removal powers are constitutional
Footnotes
