What are some of the key constitutional debates over the administrative state?

0:04There's two debates about the President's role. I think some people believe that Congress has wide latitude to insulate law execution from presidential control. There are a number of agencies in the government that are deemed executive agencies or departments, like say, Department of Defense and Department of State and Department of Labor. Then there are other agencies like the Securities and Exchange Commission, the Federal Communications Commission, Federal Reserve, that are deemed independent agencies. Now it turns out both sets of agencies, executive agencies and independent agencies enforce the law, but by statute, Congress has given a measure of independence to the independent agencies. This is usually in the form of budget latitude, but also in the form of removal protections. They do this because they want to insulate the officers heading up those agencies from presidential control.

0:53Even though the Constitution talks about three branches of government, executive, legislative, and judicial, there's this fourth branch of government composed of independent agencies that are deemed to be doing administration rather than law execution. There's some coordination with the executive branch, but they're clearly not as tightly knit with the executive branch as I say, again, the Department of Commerce, or the Department of Labor. That's one constitutional question that's still up in the year the Supreme Court hasn't quite decided that. The second constitutional question is, to what extent can Congress give its legislative power to the executive branch in the form of delegations of lawmaking power? For instance, Congress has authority to set taxes, Congress has authority to regulate commerce.

1:36Can they transfer that to the executive branch on the grounds that they are too busy or lack the requisite information, and that the executive branch has resources and the expertise to wisely wield that power. One of the striking features of the 20th century was the vast delegations of rulemaking or lawmaking power from the Congress to executive and independent agencies. There's always been this doctrine called the Non-delegation Doctrine that says that Congress can't delegate its legislative power. The court enforce that twice during the new deal, striking down two statutes on grounds of non-delegation. But they have never struck any other statute down on the grounds that it delegates too much legislative power to the president or the executive branch of these independent agencies. There's a move afoot to revive that doctrine, to put teeth into it. If it succeeds, it will make it harder for Congress to see rulemaking authority to various agencies.