The Administrative State and Its Effect on Federalism and Separation of Powers
Garrett Foltyn
Mr. Cook
GOV 101
December 15, 2023
Foltyn 1
Introduction
Change has often been hard for some people to adjust and deal with. Some people over-
value tradition and tend to stick to it even if there are better ways. This problem is very relevant
to the debate around the Administrative State where some think that it is a good change for our
government. It allows it to be more efficient and helps protect rights. In contrast, others think of
it as violating the desires and safeguards set in place by the founding fathers such as Federalism
and separation of powers. . Before getting into the arguments for and against the Administrative
State, it is important to understand the relevant background information, mainly portions of the
Constitution, the Supreme Court case surrounding the Administrative State, and the desires of
the founding fathers outlined in certain Federalist papers.1
Background
The Constitution
The Constitution, among other things, outlines the functions of each branch of the
government.2 Article One states that all legislative powers are vested in Congress, which powers
consist of making laws, taxes, regulating trade, and budgeting to name a few.3 Article two states
that executive power is granted to the President of the United States which consists of managing
the armed forces, foreign policies, and signing and enforcing the laws of Congress.4 Article three
1 United States, “The United States Constitution,” Congress, James Madison, National Constitution Center,
September 17, 1787; James Madison, “The Federalist Papers : No. 46, ” January 29, 1788; James Madison, “The
Federalist Papers : No. 45.”; James Madison, “The Federalist Papers : No. 47,” February 1, 1788; United States,
“Chevron, U.S.A., INC., Petitioner, v. Natural Resources Defense Council, INC., et al. American Iron and Steel
Institute, et al., Petitioners, v. Natural Resources Defense Council, INC., et al. William d. Ruckelshaus,
Administrator, Environmental Protection Agency, Petitioner, v. Natural Resources Defense Council, INC., et al.,”
Supreme Court, John Stevens, Legal Information Institute, June 25, 1984; United States, “William Marbury v.
James Madison, Secretary of State of the United States,” Supreme Court, John Marshall, Legal Information Institute,
February, 1803.
2 James Madison, “The United States Constitution.”
3 IBID.
4 IBID.
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grants judicial power to the Supreme Court, but it was not specifically stated that it could decide
whether or not laws are constitutional until the Supreme Court case Marbury v. Madison.5
Supreme Court Cases
There are a few Supreme Court cases that are relevant to the debate over the
Administrative State. The first one is Marbury v. Madison.6 This court case revolves around the
last-minute judge appointments of the refusal of Secretary of State James Madison’s refusal to
deliver judge appointments of the prior president to the appointees so that they could take their
positions.7 The court ruled that while what Madison was doing was illegal, the law that allowed
Marbury to bring this case to the Supreme Court was modified by the Constitution and the court
said that Congress did not have the power to do this.8 This rule is the basis of judicial review
which is the ability of the Supreme Court to declare a law unconstitutional.9 This power would
later be given to a lesser degree to the agencies within the Administrative State. This was done
through the Chevron v. Natural Resources Defense Council.10 This case revolved around the
Clean Air Act and the Environment Protection Agency which took the regulations within the Act
and interpreted the relevant provisions into specific laws for businesses.11 The NRDC said that
the EPA did not have the authority to interpret this law and took this issue to court.12 The
Supreme Court ruled unanimously in favor of the EPA, establishing the Chevron Doctrine which
granted the interpretation of Congressional legislation by agencies' legal standing unless they are
5 IBID; John Marshall, “William Marbury v. James Madison, Secretary of State of the United States.”
6 IBID.
7 "Marbury v. Madison." Oyez. Accessed December 13, 2023.
8 IBID.
9 IBID.
10 John Stevens,“Chevron, U.S.A., INC., Petitioner, v. Natural Resources Defense Council, INC., et al. American
Iron and Steel Institute, et al., Petitioners, v. Natural Resources Defense Council, INC., et al. William d.
Ruckelshaus, Administrator, Environmental Protection Agency, Petitioner, v. Natural Resources Defense Council,
INC., et al..”
11 "Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc," Oyez, Accessed December 13, 2023.
12 IBID.
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unconstitutional.13 This could be considered an inference to the separation of powers designed by
the founding fathers since interpreting Congressional actions is the job of the Judicial branch and
making rules with legal standing is the responsibility of Congress as outlined in the
Constitution.14
Federalist Papers
The founding fathers had certain desires and wishes that they incorporated into the
Constitution. These wishes and an explanation of why they are important are outlined in certain
Federalist papers, namely the separation of powers in Federalist Paper 47, federalism in
Federalist Paper 46, and limited government in Federalist Paper 45.15 In Federalist Paper 47,
James Madison talks about how he specifically wrote the Constitution so that the powers of the
government were specifically divided between the three branches of government so that it would
be hard for one party to take complete control of the government, thus preventing tyranny.16 In
Federalist Paper 46, James Madison outlines his concept of Federalism which is the division of
power between the Federal and State governments which he states is an important feature of the
Constitution.17 Lastly, Federalist Paper 45 states that the government that the Constitution would
create would be one of limited powers and that the public should not worry about the
government getting extremely strong since the Constitution is designed to limit the government’s
power.18
Arguments Against the Administrative State
13 IBID.
14 James Madison, “The United States Constitution.”
15 James Madison, “The Federalist Papers : No. 47”; James Madison, “The Federalist Papers : No. 46.”
16 James Madison, “The Federalist Papers : No. 47.”
17 James Madison, “The Federalist Papers : No. 46.”
18 James Madison, “The Federalist Papers : No. 45.”
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John Marini
Multiple people think that the Administrative State goes against multiple parts of the
Constitution. For starters, John Marini, in his book Unmasking the Administrative State: The
Crisis of American Politics in the Twenty-first Century takes multiple shots at the Administrative
State. He states that for the Administrative State to work effectively its rulings must be based
solely on logic and reasoning, with factionalism and superstition being completely absent, which
is impossible because those things are bound to human nature.19 He also states that the
Administrative States lack real authority since it is not founded in the Constitution and because it
does not follow the rule of limited government.20 Lastly in this book, he states that the
Administrative State takes large amounts of power away from the people because offices within
the Administrative State are not voted on.21 Marini also criticizes the Administrative State in his
journal article “Abandoning the Constitution.”22 In this article, he also cites the lack of
legitimacy around the Administrative State as well as the fact that it fails to represent the public
interest and will.23 He also attacks the Administrative State due to its blatant disregard for the
principle of separation of powers which was very important to the Founding Fathers, as laid out
in Federalist Paper 47.24 He claims that the Administrative State had taken on too much of the
legislative power that was specifically delegated to Congress in Article 1 of the Constitution,
making Congress more of an administrative oversight committee as opposed to a legislative
body.25 All of this violates the separation of powers because the Administrative State falls
19 John A Marini, 2019, Unmasking the Administrative State: The Crisis of American Politics in the Twenty-first
Century, Edited by Ken Masugi, First American edition ed, New York, New York: Encounter Books, pg 54.
20 IBID, 56.
21 IBID, 69.
22 John Marini, 2012, “Abandoning the Constitution,” Claremont Review of Books 12, no. 2 (Spring).
23 IBID.
24 IBID; James Madison, “The Federalist Papers : No. 47.”
25 John Marini, “Abandoning the Constitution”; James Madison, “The United States Constitution.”
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underneath the Executive Branch and the legislative power that agencies are utilizing belongs to
the legislative branch.26
Gary Lawson
Gary Lawson his article, “Limited Government, Unlimited Administration: Is it Possible
to Restore Constitutionalism?” focuses on the desire for the return of constitutionalism, the
following of the Constitution, which the Administrative State stands in the way of.27 In the
beginning of his article, Lawson specifically mentions the principles of limited government
outlined in Federalist 45 which he later goes on to say that the Administrative State is too
powerful and that it violates this principle.28 He states that the Administrative State reaches
outside the powers that are granted to Congress in the Constitution, such as regulating commerce
and borrowing money.29 He then goes on to lay out the separation of powers principle as
designed by James Madison in Federalist 47 and the Constitution.30 He then states that the
Administrative State flies right in the face of this principle since it combines the powers of the
executive, legislative, and judicial branches all under one roof.31 He also claims that the
Administrative State at times violates the Seventh Amendment and the right to a jury. 32 Lastly,
he states that to fix the United States government we must do three things which he lists as, “The
first element is to de-legitimize precedent…The second element is to continue developing the
26 IBID.
27 Gary Lawson, 2009, “Limited Government, Unlimited Administration: Is it Possible to Restore
Constitutionalism?” The Heritage Foundation.
28 IBID; James Madison, “The Federalist Papers : No. 45.”
29 Gary Lawson, “Limited Government, Unlimited Administration: Is it Possible to Restore Constitutionalism?”;
James Madison, “The United States Constitution.”
30 Gary Lawson, “Limited Government, Unlimited Administration: Is it Possible to Restore Constitutionalism?”;
James Madison, “The Federalist Papers : No. 47.”; James Madison, “The United States Constitution.”
31 Gary Lawson, “Limited Government, Unlimited Administration: Is it Possible to Restore Constitutionalism?”.
32 IBID.
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case for the correct meaning of the Constitution… The third element is to understand why the
Constitution is so much out of favor these days…”33
Joseph Postell
Lastly for the opposition is Joseph Postell. In his paper, From Administrative State to
Constitutional Government, he gives considerable amounts of criticism regarding the
Administrative State.34 He begins by listing all the principles of the Constitution violated by the
Administrative State starting with the principle of limited government which is established in the
Constitution through the limited powers granted to the government in the Constitution as talked
about in Federalist 45.35 He states that the Administrative State has grown into a fourth branch of
government that is utilizing the powers of both the Legislative and Executive branches, violating
the separation of powers principle outlined in Federalist 47.36 He then goes on to state that the
Administrative States is run by unelected officials and that it is making laws and policies that are
affecting millions and costing billions.37 One of the examples he uses is the Environmental
Protection Agency’s regulation of mercury emissions from coal plants which cost 10.9 billion
dollars annually for ten years and led to an unreliable energy supply in parts of the country.38
Another example he used was when the Fish and Wildlife Service decided that anyone who
affected the habit of a creature it deemed “threatened” or “endangered” would face fines and
possible criminal charges.39 He also stated that thanks to the Supreme Court case Chevron v.
33 IBID.
34 Joseph Postell, 2012, From Administrative State to Constitutional Government, Washington, DC: The Heritage
Foundation, pg 1-2.
35 IBID, pg 1-2.; James Madison, “The United States Constitution.”; James Madison, “The Federalist Papers : No.
45.”
36 Joseph Postell, From Administrative State to Constitutional Government, pg 1-2.; James Madison, “The
Federalist Papers : No. 47.”
37 Joseph Postell, From Administrative State to Constitutional Government, pg 2.
38 IBID, pg 2.
39 IBID, pg 3.
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NRDC and the Administrative Procedure Act the Administrative State infringes on the powers of
the Judicial Branch since these cases allow the agencies’ interpretation of Congressional laws to
have legal standing, something usually reserved for the Supreme Court under Marbury v.
Madison, the case where the court asserted the power of judicial review.40 Thankfully, his book
is not all doom and gloom with him offering fixes that each branch of government can enact. 41
For the Legislative branch, he recommends that they force all laws passed by agencies to go
through Congress for congressional approval to “Restore accountability and constitutionality to a
large portion of the Administrative State.”42 This would make it easier for the citizens to have a
say in the laws passed by the Administrative State since it would be their elected officials
approving these laws. For the Executive branch, he recommends that the President should take a
more active role in the affairs of the Administrative State rather than simply appointing cabinet
members and some agency heads.43 This would cement the Administrative State as underneath
the Executive branch as opposed to it functioning as its separate branch. Lastly, for the Judicial
branch, he suggests that they view the interpretations by agencies of the Administrative State
with incredible scrutiny instead of simply accepting them thus “restoring some semblance of
separation of powers.”44
Arguments in Support of the Administrative State
Woodrow Wilson
40 IBID, pg 30; John Stevens,“Chevron, U.S.A., INC., Petitioner, v. Natural Resources Defense Council, INC., et
al. American Iron and Steel Institute, et al., Petitioners, v. Natural Resources Defense Council, INC., et al. William
d. Ruckelshaus, Administrator, Environmental Protection Agency, Petitioner, v. Natural Resources Defense Council,
INC., et al..”; John Marshall, “William Marbury v. James Madison, Secretary of State of the United States.”
41 Joseph Postell, From Administrative State to Constitutional Government, pg 25-31.
42 IBID, pg 26.
43 IBID, pg 28-29.
44 IBID, pg 30-31.
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Woodrow Wilson was one of the main supporters of the Administrative State. In his
essay, “The Study of Administration,” he outlines his reasoning for his support.45 He starts by
stating that the Administrative State is an essential part of the government that allows for the
federal government to run more efficiently.46 He states that the United States has focused too
much on limiting the abilities and powers of the government instead of making run better.47 This
has led the United States to fall behind the rest of the world.48 He also states that since those
within the Administrative State are not elected officials, they are removed from the complexities
of politics and therefore do not have to adhere to a political agenda.49 He agrees that while
making a law should be a political progress, once something becomes a law, the management of
that law should not be political and instead should be an administrative duty.50 He later goes on
to say that since those within the Administrative State are not elected officials, they can hire the
most qualified officials instead of the most popular officials.51 He finishes his essay by
addressing the complexities of the Administrative State as it begins to integrate with the local
governments which is more similar to cooperative federalism, the idea that the federal and local
governments should work together, as opposed to James Madison’s Federalist 46 and its concept
of Federalism.52
Lydon Johnson
45 Woodrow Wilson, 1886, “The Study of Administration,” Teaching American History.
46 IBID.
47 IBID.
48 IBID.
49 IBID.
50 IBID.
51 IBID.
52 IBID; James Madison, “The Federalist Papers : No. 47.”
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Lydon Johnson was another supporter of the Administrative State. In his speech, Great
Society Speech, he outlines many of the problems that the United States was facing at the time.53
He then states that the United States can create many agencies in the Administrative State to
address these issues and to lessen their effect on the American people.54 He then goes on to say
that for these agencies to be effective they cannot be solely federal nor solely local but they must
bridge the gap between the two.55 This is again similar to cooperative federalism as opposed to
James Madison’s Federalist 46 and its concept of Federalism.
Consensus
After reviewing the multitude of arguments around the Administrative State, many things
have become apparent. As pointed out in the arguments of Johnson and Wilson, the
Administrative State has allowed for the government to become more efficient in its work by
enabling the hiring of specialists to handle the creation of policies revolving around their
expertise and to make these policies without the meddling of politics.56 It also has violated many
of the founding principles of separation powers, federalism, limited government, and consent of
the governed as outlined in multiple federalists papers and it has become a fourth branch of
government, combining the powers of the other branches into one scarily powerful branch, as
outlined in the arguments of Postell, Lawson, and Marini.57 After overviewing the arguments the
clear option seems to be what Postell suggests, which is having the Executive, Judicial, and
53 Lyndon B. Johnson, Great Society Speech, May 22, 1964.
54 IBID.
55 IBID.
56 Woodrow Wilson, 1886, “The Study of Administration,” Teaching American History; Lyndon B. Johnson, Great
Society Speech, May 22, 1964.
57 James Madison, “The Federalist Papers : No. 46. ”; James Madison, “The Federalist Papers : No. 45.”; James
Madison, “The Federalist Papers : No. 47”.;John Marini, “Abandoning the Constitution”; John A Marini,
Unmasking the Administrative State: The Crisis of American Politics in the Twenty-first Century; Joseph Postell,
From Administrative State to Constitutional Government; Gary Lawson, “Limited Government, Unlimited
Administration: Is it Possible to Restore Constitutionalism?”.
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Legislative branches take substantial actions to reign in the Administrative State and protect the
founding principles that it currently tramples underfoot.58
Conclusion
In conclusion, while the Administrative State allows the federal government to run
smoothly and hires specialized individuals to handle specific laws, the puts the founding
principles of separation powers, federalism, limited government, and consent of the governed at
risk through its overreaching power, its use of unelected officials, meddling in the affairs of local
governments, and by incorporating the powers of all the branches of government under one roof.
The solution to this problem is to have Congress approve each law passed by an agency before it
can take effect, have the President take a more active role in running and managing the
Administrative State, and have the Judicial branch be incredibly critical of interpretations
produced by the Administrative State. Put simply, in our striving to advance our country we have
forgotten what the principles it was built upon and we must return to these principles to ensure
the prosperity of the country.
58 Joseph Postell, From Administrative State to Constitutional Government.
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Bibliography
"Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc." Oyez. Accessed
December 13, 2023. https://www.oyez.org/cases/1983/82-1005.
James Madison. “The Federalist Papers : No. 45.”
https://avalon.law.yale.edu/18th_century/fed45.asp.
James Madison. “The Federalist Papers : No. 46.” January 29, 1788.
https://avalon.law.yale.edu/18th_century/fed46.asp.
James Madison. “The Federalist Papers : No. 47.” February 1, 1788.
https://avalon.law.yale.edu/18th_century/fed47.asp.
Johnson, Lyndon B. Great Society Speech. May 22, 1964.
https://teachingamericanhistory.org/document/great-society-speech-2/.
Lawson, Gary. 2009. “Limited Government, Unlimited Administration: Is it Possible to
Restore Constitutionalism?” The Heritage Foundation. https://www.heritage.org/political-
process/report/limited-government-unlimited-administration-it-possible-restore.
"Marbury v. Madison." Oyez. Accessed December 13, 2023.
https://www.oyez.org/cases/1789-1850/5us137.
Marini, John. 2012. “Abandoning the Constitution.” Claremont Review of Books 12, no. 2
(Spring). https://claremontreviewofbooks.com/abandoning-the-constitution/.
Marini, John A. 2019. Unmasking the Administrative State: The Crisis of American
Politics in the Twenty-first Century. Edited by Ken Masugi. First American edition ed.
New York, New York: Encounter Books. https://lccn.loc.gov/2018024187.
Postell, Joseph. 2012. From Administrative State to Constitutional Government. Washington, DC:
The Heritage Foundation. https://thf_media.s3.amazonaws.com/2012/pdf/sr116.pdf.
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United States. “The United States Constitution.” Congress. James Madison. National
Constitution Center. September 17, 1787.
https://constitutioncenter.org/the-constitution/full-text.
United States. “Chevron, U.S.A., INC., Petitioner, v. Natural Resources Defense Council,
INC., et al. American Iron and Steel Institute, et al., Petitioners, v. Natural Resources
Defense Council, INC., et al. William d. Ruckelshaus, Administrator, Environmental
Protection Agency, Petitioner, v. Natural Resources Defense Council, INC., et al.”
Supreme Court. John Paul Stevens. Legal Information Institute. June 25, 1984.
https://law.cornell.edu/supremecourt/text/467/837.
United States. “William Marbury v. James Madison, Secretary of State of the United
States.” Supreme Court. John Marshall. Legal Information Institute. February, 1803.
https://www.law.cornell.edu/supremecourt/text/5/137.
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https://teachingamericanhistory.org/document/the-study-of-administration/.
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sources in an organized sources in an organized historiography, but is and hard to follow.
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