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Post by the Scribe on May 4, 2020 17:14:15 GMT
ballotpedia.org/Administrative_state
The administrative state is a term used to describe the phenomenon of executive branch administrative agencies exercising the power to create, adjudicate, and enforce their own rules. Five pillars are key to understanding the main areas of debate about the nature and scope of administrative agency action: nondelegation, judicial deference, executive control of agencies, procedural rights, and agency dynamics.
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Post by the Scribe on May 4, 2020 17:15:15 GMT
Nondelegation
See also: Five pillars of the administrative state: nondelegation
The nondelegation doctrine is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. As Boston University School of Law professor Gary Lawson wrote in a 2001 law review article, "The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study."[1] Some argue that the delegation of one branch of government's power to another, which allows administrative agencies to issue rules with the force and effect of law, violates separation of powers principles because it runs counter to the nondelegation doctrine—a legal principle holding that legislative bodies cannot delegate their legislative powers to executive agencies or private entities. In other words, lawmakers cannot allow others to make laws. Others counter that statutes giving open-ended authority to executive or judicial actors are not actually delegations, and that administrative rulemaking is not tantamount to lawmaking, making concerns over delegation moot.
Judicial deference
See also: Five pillars of the administrative state: judicial deference
Judicial deference is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Judicial deference to administrative agencies is a principle of judicial review that applies when a court yields to an agency's interpretation of either a statute or regulation promulgated by the agency. In other words, when a law or regulation is challenged in court, the agency's interpretation is upheld if it is considered to be reasonable, even if the court would prefer a different interpretation.
Executive control of agencies
See also: Five pillars of the administrative state: executive control of agencies
The executive control of agencies is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Executive control is primarily exercised through appointment and removal power—the authority of an executive to appoint and remove officials in the various branches of government. In the context of the federal government, the president has the authority to appoint officers of the United States, including federal judges, ambassadors, and Cabinet-level department heads. A scholarly debate in this area, however, concerns the president's removal power. The president has the authority to remove his appointees from office, but the heads of independent federal agencies can only be removed for cause. Other areas of scholarly debate explored in this area include an executive's regulatory review activities, led at the Federal level, for example, by the White House Office of Information and Regulatory Affairs (OIRA), as well as an executive's authority to reorganize administrative agencies within the executive branch.
Procedural rights
See also: Five pillars of the administrative state: procedural rights
Procedural rights is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Procedural rights encompasses debates about individual due process and standing before administrative agency adjudication and enforcement actions. Procedural rights also include citizen access agency rulemaking processes and decision making proceedings.
Agency dynamics
See also: Five pillars of the administrative state: agency dynamics
Agency dynamics is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Agency dynamics is a term used to refer to the structure and function of administrative agencies. While the majority of agencies are housed under the executive branch, others are established as independent federal agencies or are housed under the legislative or judicial branches. These structural variations impact agency oversight as well as agency interactions across branches. This pillar also involves understanding the nuts and bolts of agency functions, including rulemaking and adjudication proceedings.
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Post by the Scribe on May 4, 2020 17:17:40 GMT
Key points in development of the administrative state
The Age of Enlightenment (18th century)
The roots of the administrative state extend to the Age of Enlightenment and the corresponding French and American Revolutions. In the broadest terms, philosophers of the period embraced rational thought as the instrument of human improvement. During this time, individuals began to regard reason as intellectually superior to faith, including faith in religion and the social hierarchy of the period. Enlightenment thinkers embraced the idea that reason could drive human improvement by giving individuals the tools to make the best decisions for their lives. Undergirding this philosophy was the idea that knowledge over time, if applied by well-intended people, would result in societal benefits. A society organized by reason would, it was supposed, engender liberty and equality to replace the ancien régime (the monarchy, nobility, and the Catholic Church).[2]
The Enlightenment principle that reason could improve society was embraced by French and American revolutionaries of the late 18th century, who championed the notion that reason could entirely remake society. The argument that reason can improve and reshape society is a common thread that carries through to leaders of the Progressive Era and the modern administrative state.[3]
The Progressive Era (1890-1920)
Early growth of the administrative state occurred as a result of government regulation in the late 19th century. Thus was born the Progressive Era, during which reformers sought to remedy a variety of perceived social ills through an administrative apparatus run by those deemed experts untainted, it was believed, by political ambitions—and freed, in the view of some, from fixed constitutional constraints.
During the 1870s, agricultural workers called for the government regulation of railroads, which transported farm goods to markets, and banks, which financed farm production. The Interstate Commerce Commission, the nation's first regulatory agency, was created in 1887 to regulate railroads and carriers across state lines. Moreover, industrialization and immigration contributed to enormous wealth creation at the turn of the 20th century, but living conditions in major cities also deteriorated, and factories, some argued, could be dangerous. As the 19th century drew to a close, workers compensation laws were adopted by a number of states to address accidents and injuries suffered by industrial workers. Congress went on to pass the Federal Meat Inspection Act in 1906 to regulate the meat packing industry and safeguard against unsanitary slaughterhouse operations. That same year, Congress passed the Pure Food and Drugs Act to regulate the manufacture and distribution of what the legislation described as "adulterated or misbranded or poisonous or deleterious foods, drugs or medicines, and liquors.”[4][5][6][7]
Woodrow Wilson
Woodrow Wilson, who assumed the presidency in 1913, embraced policies that contributed to the expansion of the budding administrative state. Wilson, Frank Goodnow, and other contemporary thought leaders envisioned a government structure where politics and administration could operate separately from one another. Under this structure, government administration could be managed by neutral experts operating without political influence who would, consequently, improve the lives of all Americans. The Pendleton Act of 1883 made early progress in this direction by eliminating patronage in political government appointments and establishing a merit-based system for the selection of government employees. In order to fully implement his vision, Wilson supported the concept of a Darwinian Constitution—the idea that the Constitution is a living document that can change with society over time. Wilson and his contemporaries, influenced by German Hegelian philosophers, also championed the idea of mature freedom, which grants individuals the freedom that they can responsibly manage as opposed to recognizing individual freedom as a natural right.[4][8]
The progressive underpinnings of the Wilson administration (1913-1921) influenced a number of regulatory actions. The Federal Reserve Act of 1913 created the Federal Reserve System and implemented federal regulation of the banking industry, the Federal Trade Commission (FTC) was established in 1914, and the Clayton Act of 1914 strengthened the FTC's anti-trust enforcement measures.[4][5]
The New Deal (1933-1939)
During the 1920s, the growth in government administration slowed and, according to Harvard professors Edward Glaeser and Andrei Schleifer, even retreated. However, the stock market crash of 1929 and the ensuing Great Depression gave rise to the New Deal, which operationalized progressive notions of government. President Franklin Roosevelt (D) and Congress effectively seized control of the financial system, and empowered a new administrative bureaucracy to refashion American society.
The New Deal ushered in a resurgence of progressive ideology and a shift toward the idea that science and experts in government administration could improve society. James Landis, an advisor to President Roosevelt and an architect of the New Deal, implemented a broad expansion of federal administrative agencies in a relatively short period of time. The Securities Acts of 1933 and 1934 regulated the securities markets and created the Securities and Exchange Commission. The National Labor Relations Board and the Federal Communications Commission were also created during this period.[4][5]
According to Glaeser and Schleifer, "When Landis wrote in 1938, he could confidently conclude that 'the administrative' has replaced 'the judiciary' as the principal form of social control of business.”[5]
American political scientist Dwight Waldo coined the term administrative state in his 1948 book The Administrative State: A Study of the Political Theory of American Public Administration. For more information about the origin and evolution of the term administrative state, click here.
The second wave and the modern administrative state (1964-present)
President Lyndon Johnson's (D) Great Society programs spurred a new period of growth for the administrative state. This "second wave of regulatory growth crested" by the 1970s, according to Christopher DeMuth, a fellow at the Hudson Institute. Under Johnson and his successor, Richard Nixon (R), new federal agencies were created, including the Environmental Protection Agency, the Consumer Product Safety Commission, the National Highway Traffic Safety Administration, and the Occupational Safety and Health Administration.[4][9]
Unlike the independent regulatory commissions created during the Progressive Era, which Demuth described as "mini-legislatures," the federal agencies established during the second wave of regulatory growth were hierarchies with a single individual at the helm appointed by the president. Moreover, unlike the Democratic-driven growth of the early 20th century, Democrats and Republicans alike contributed to the expansion of the administrative state during the second half of the 20th century and the early 21st century. DeMuth observed that prior to the Democratic Obama administration, the largest increases in federal regulations occurred during the Republican administrations of Richard Nixon and George W. Bush. The total annual page count of Federal Register, the daily journal of the federal government that is often used as a metric to gauge the size and scope of federal administrative activity, reached an all-time high of 95,894 pages under the Obama administration in 2016.[9]
The modern administrative state is made up of a complex combination of executive agencies and independent federal agencies—though the exact number of current agencies is unknown. Estimates from the Administrative Conference of the United States (ACUS) range from 78 to 137 independent federal agencies and between 174 and 268 executive agencies.[10][11]
ballotpedia.org/Administrative_state
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Post by the Scribe on May 4, 2020 17:18:25 GMT
Major arguments for and against the administrative state
Scholars and observers of the administrative state have presented a number of arguments regarding the perceived merits and shortcomings of the administrative state. The following overviews put forth the key claims made by both supporters and opponents of the administrative state. For a taxonomy of arguments about the nature and scope of the administrative state, click here.
Supporting arguments
Supporters of the administrative state generally argue that federal agencies perform valuable government functions, such as administering federal social services programs and enacting health and safety regulations. In the process, proponents claim that agency staff acquire subject-matter expertise that enables them to develop and implement specialized regulations beyond the broad directives that legislators, often with only cursory subject-matter knowledge, instruct agencies to administer. Supporters contend that federal judges, therefore, appropriately exercise deference agencies' expert interpretations of statutes and regulations. Thus, proponents argue that federal agencies support the federal government by developing and overseeing complex regulations that implement broader policy goals.
Opposing arguments
Opponents of the administrative state generally center their arguments on what they consider to be the constitutional violations of administrative agencies. They argue that the combination of executive, legislative, and judicial functions within administrative agencies violates the separation of powers principle and that congressional delegations of authority to agencies for the development of regulations violate the nondelegation doctrine. Judges, opponents claim, regularly subvert their judicial responsibility to interpret the law by deferring to agency interpretations of statutes and regulations. Moreover, opponents question the impartiality of federal administrative adjudicators and claim that the administrative adjudication process violates citizens' procedural rights.
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