Timeline of the administrative state

See also:Key points in development of the administrative state

Five pillars of the administrative state

Administrative State
Five Pillars of the Administrative State
•Agency control •Executive control •Judicial control •Legislative control • Public Control
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Ballotpedia’s five pillars of the administrative state offer a framework for understanding how administrative agencies operate, the scope of their authority and influence, and the key policies and debates that shape and challenge them.

Agency control of the administrative state

See also:Agency control of the administrative state

Agency control examines how administrative agencies manage internal authority while carrying out their core functions—writing rules, enforcing them, and resolving disputes. This includes how agencies delegate responsibilities to sub-units, maintain internal oversight, and coordinate across complex organizational structures. These arrangements shape how agencies operate and how they are held accountable.

A current issue in this area is the role of the Department of Government Efficiency (DOGE), created byexecutive order in 2025 through the reorganization of the U.S. Digital Service. Though not established by Congress, DOGE plays a growing role in coordinating cross-agency efficiency initiatives. Its expanding influence has raised questions about how authority is delegated within the executive branch and how non-legislative entities like DOGE are held accountable when shaping or guiding agency operations.

• Major court cases related to agency control
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• Key terms related to agency control
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• Reform proposals related to agency control
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• Major arguments about agency control
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Executive control of the administrative state

See also:Executive control of the administrative state

Executive control examines how the executive branch influences administrative agencies. This includes appointing and removing agency leaders, issuing executive orders, and using centralized review processes to shape agency action. These mechanisms allow the executive to align agency work with broader policy goals, though their reach depends on whether an agency is considered executive or independent.

A current issue at the federal level is the role of theOffice of Information and Regulatory Affairs (OIRA), which reviews major agency rules before they take effect. Supporters say OIRA promotes coordination and accountability; critics argue it can delay or politicize agency decisions, raising questions about how much control the president should exert over regulatory outcomes.

• Major court cases related to executive control
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• Key terms related to executive control
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• Reform proposals related to executive control
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• Major arguments about executive control
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Judicial control of the administrative state

See also:Judicial control of the administrative state

Judicial control examines how courts oversee agency actions through judicial review and judicial deference.Judicial review allows courts to assess whether agencies have acted within the bounds of their legal authority and followed proper procedures.Judicial deference, in contrast, involves courts deferring to an agency’s reasonable interpretation of an ambiguous statute.

A current issue in this area is the future ofChevron deference—the longstanding doctrine that courts should defer to agency interpretations when laws are unclear. Critics argue it gives agencies too much latitude to expand their power, while supporters say it respects agency expertise and legislative intent. The U.S. Supreme Court is reconsidering this approach inLoper Bright Enterprises v. Raimondo, a case that could reshape the balance between judicial and agency authority.

• Major court cases related to judicial control
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• Key terms related to judicial control
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• Major arguments about judicial control
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Legislative control of the administrative state

See also:Legislative control of the administrative state

Legislative control examines how lawmakers oversee and shape the work of administrative agencies. This includes passing the laws that grant agencies their powers, setting budgets, confirming key officials, and conducting oversight through hearings or investigations. These mechanisms allow legislatures to guide policy implementation and check agency authority.

A current issue in this area is the growing interest in requiring legislative approval ofsignificant agency rules. Tools like legislative review acts have been used to reverse recently adopted regulations, while proposals modeled on theREINS Act would require lawmakers to approve major rules before they take effect. Supporters say these measures enhance accountability; critics warn they could politicize or delay regulatory action.

• Major court cases related to legislative control
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• Key terms related to legislative control
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• Major arguments about legislative control
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Public control of the administrative state

See also:Public control of the administrative state

Public control examines how individuals and groups engage with administrative agencies and hold them accountable. This includes rights to due process in agency proceedings, participation in rulemaking through public comments, and access to agency records and meetings. These mechanisms are designed to promote transparency and public input in regulatory decisions.

A current issue in this area is the rollback ofnotice-and-comment procedures for certain rules. The current administration has allowed agencies to bypass these public participation requirements more frequently, citing the need for speed or flexibility. Supporters argue this streamlines government action; critics warn it reduces transparency and limits the public’s ability to influence policies that affect them.

• Major court cases related to public control
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• Key terms related to public control
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• Major arguments about public control
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Key terms related to the administrative state

See also:Glossary of administrative state terms

This section defines the core terms essential for understanding the administrative state, including agency regulations, legal frameworks, and oversight mechanisms.

• Administrative law judge: the presiding judge in a federal administrative hearing. An ALJ serves as both the judge and the jury in an administrative hearing, similar to the role of a judge in a civil bench trial.^[17]  
• Administrative Procedure Act: a federal law passed in 1946 establishing uniform procedures for federal agencies to propose and issue regulations.^[18]  
• Adjudication: agency determinations outside of therulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute and, in some cases, may set agency policy.^[19][20]  
• Chevron deference (doctrine): an administrative law principle that compelled federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer.Chevron was overturned by the Supreme Court on June 28, 2024.  
• Congressional Review Act: a federal law passed in 1996 creating a review period during whichCongress, by passing a joint resolution that is then signed by the president, can overturn new agency rules and block agencies from creating similar rules in the future.^[21]  
• Enabling statute: legislation that confers new powers on an entity or permits something that was previously prohibited or not allowed.^[22][23][24] In the context of administrative law, an enabling statute establishes the powers and responsibilities of a government agency.^[25]  
• Federal Register: a legal newspaper published every federal working day by the National Archives and Records Administration (NARA) and theGovernment Publishing Office (GPO).^[26]  
• Final rule: a federal administrative regulation that advanced through theproposed rule andpublic comment stages of therulemaking process and is published in theFederal Register with a scheduled effective date.
• Independent federal agency: a term used to describe a federal agency that operates with some degree of autonomy from the executive branch.^[27][9]
• Judicial review: the power to interpret the laws and overturn any law or government action inconsistent with theUnited States Constitution.  
• Nondelegation doctrine: a principle in constitutional and administrative law that holds that Congress cannot delegate its legislative powers to executive agencies or private entities.
• Notice of proposed rulemaking: a preliminary version of a prospective federal agency regulation.
• Office of Information and Regulatory Affairs: responsible for reviewing and coordinating what it deems allsignificant regulatory actions made by federal agencies.^[28]
• Office of Management and Budget: executive agency formed in 1970 to oversee federal agencies and executive branch operations, and coordinating andreviewing agency regulations.^[29]
• Regulatory review: Processes used by Congress, the president, and the courts to oversee the rules, regulations, and other policies issued by federal agencies.
• Rulemaking: a process that enables federal agencies to amend, repeal, or create an administrative regulation. The most common rulemaking process is informal rulemaking, which solicits written public feedback on proposed rules during a comment period.
• Standing: a legal doctrine applied by Article III courts to determine whether a prospective plaintiff in a case has suffered a legal injury as the result of an action by the defendant.^[30][31]

Federal departments and agencies

See also:Agencies and offices of the administrative state

The U.S. executive government consists of 15 federal departments and more than 400 agencies, including some independent agencies, all responsible for managing the day-to-day operations of the federal government. Each department oversees a variety of agencies that focus on specific areas, ranging from industry regulation to service provision and ensuring compliance with federal laws. This section outlines the major U.S. departments and their associated agencies as of March 18, 2025.

Administrative state tracking

This section highlights Ballotpedia’s tracking of the administrative state, including the 50-state survey of Administrative Procedure Acts, changes to the Federal Register, completed OIRA reviews of federal agency rules, theChecks and Balances monthly newsletter, federal agency rules repealed under the Congressional Review Act, and presidential executive orders related to the administrative state.

• 50-state survey of the Administrative Procedures Acts

  Ballotpedia's series of 50-state surveys of the Administrative Procedures Act, which examine the five pillars to the administrative state at the state level.
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• Changes to theFederal Register

  This page tracks the number of federal administrative agency documents and total pages added to theFederal Register on a weekly basis.
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• Completed OIRA review of federal administrative agency rules

  This page tracks the Office of Information and Regulatory Affairs' (OIRA) completed reviews of administrative rules from 2017 to 2024.
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• Checks and Balances

  A monthly email newsletter featuring highlights from Ballotpedia's administrative state coverage.
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• Federal agency rules repealed under the Congressional Review Act

  This page shows all of the rules repealed under the Congressional Review Act.
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• Executive orders related to the administrative state

  This page lists presidential executive orders related to the administrative state.
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• Administrative state legislation tracker

  A centralized hub to help you navigate the landscape of administrative state legislation across all 50 states.
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Recent legislation related to the administrative state

See also:Ballotpedia's Administrative State Legislation Tracker

Ballotpedia’s Administrative State Legislation Tracker monitors proposed and enacted legislation related to the administrative state in all 50 states and Congress for 2024 and 2025. The tracker includes daily updates and plain-language summaries of bills addressing topics such as rulemaking, judicial review, agency structure, and more. To view the legislation in Ballotpedia's Administrative State legislation tracker and explore by bill status, provision details, sponsors, and moreclick here.

Enacted legislation related to the administrative state

The following map and table show enacted state legislation in 2025 related to the administrative state.​ To find out more about these bills,click here.^[32]

Scroll through the table below and click on each bill to see details.Click here to view the legislation in Ballotpedia's Administrative State legislation tracker and explore by bill status, provision details, sponsors, and more.

Reform proposals related to the administrative state

• Reform proposals related to agency control of the administrative state

  Ballotpedia has identifiedthree major types of reform categories related to agency control:

  • Internal agency rulemaking procedures: This category focuses on proposals to reform how rules are initiated and reviewed within agencies themselves.
  • Civil service and staffing reform: This category addresses reforms to civil service hiring, training, staffing, and agency communication, with the goal of improving expertise, accountability, independence, and public understanding of agency functions.
  • Agency structure and location: This category includes reforms aimed at decentralizing or restructuring agencies, especially by changing their geographic or operational footprints.
• Reform proposals related to executive control of the administrative state

  Ballotpedia has identifiedfour major types of reform categories related to executive control:

  • Appointment and removal authority: This reform category includes proposals that adjust who has the authority to appoint or remove officials within administrative agencies.
  • Executive regulatory oversight: This category includes reforms aimed at increasing executive oversight and control over federal agency regulatory processes.
  • Broader executive authority: This category encompasses reform ideas designed to expand presidential and gubernatorial control over broader aspects of executive branch management and coordination.
  • State executive oversight: This reform category includes the oversight of administrative agencies by state executive officials through mechanisms such as review processes, reporting requirements, or approval authority.
• Reform proposals related to judicial control of the administrative state

  Ballotpedia has identifiedthree major types of reform categories related to executive control:

  • Judicial deference: This category includes proposals that address how much deference courts should give to administrative agencies when interpreting laws.
  • Judicial review: This category includes proposals to change how courts review agency actions, especially in terms of legal authority and cost-based assessments.
  • Judicial structure and venue: This category includes proposals aimed at changing how, where, and through what procedures regulated entities can seek judicial review of agency actions.
• Reform proposals related to legislative control of the administrative state

  Ballotpedia has identifiedfive major types of reform categories related to legislative control:

  • Legislative oversight and approval of rules: This reform category focuses on measures that would increase legislative involvement in the rulemaking process, ensuring that the legislature has a say in the creation and approval of regulations.
  • Statutory authority and nondelegation doctrine: This reform category focuses on ensuring that legislative authority is clear and that agencies do not exceed their delegated powers.
  • Regulatory analysis and economic impact: This reform category focuses on improving the analysis of regulations and ensuring that their economic impact is carefully considered.
  • Legislative oversight of regulatory procedures: This reform category addresses how legislatures can assert authority over the transparency, justification, and continued validity of regulatory activity.
  • State and local government legislative control: This category includes reforms that strengthen the role of state and local legislatures in overseeing regulatory activity and managing the influence of federal or executive actions on state and local governance.
• Reform proposals related to public control of the administrative state

  Ballotpedia has identifiedfour major types of reform categories related to public control:

  • Adjudication procedures and structure: This category focuses on strengthening the fairness, consistency, and integrity of agency adjudication processes.
  • Procedural rights and legal protections: This category addresses ways to strengthen individual rights and ensure procedural fairness in administrative enforcement and adjudication.
  • Transparency and public access: This category seeks to make agency processes and data more visible and understandable to the public.
  • Oversight and structural limitations: This category includes proposals aimed at limiting agency discretion and enhancing structural accountability.

Major arguments for and against expanding the administrative state

Scholars and observers have debated whether government agencies should have more or less authority and influence in policymaking and implementation. The following sections summarize key arguments made by those who support giving agencies more power and those who advocate reducing it. These arguments touch on issues of accountability, regulatory burden, efficiency, and the proper role of agencies in governance. For a taxonomy of arguments about the nature and scope of the administrative state,click here.

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.

Specific arguments about the administrative state

• Arguments related to public control

  
  

  Arguments about standing
  
  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

  • Claim: The Constitution does not place limits on standing

  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

  • Claim: Limits on standing promote political accountability by preventing judicial management of the administrative state

  
  
  Arguments about agency adjudication
  
  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

  • Claim: Informal adjudication circumvents the due process protections of the APA

  3.Argument: Only APA-qualified ALJs should adjudicate disputes

  • Claim: Administrative judges are not impartial adjudicators

  
  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

  2.Argument: Administrative proceedings do not require the same due process procedures as criminal proceedings

  • 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

  • Claim: Due process varies and can take different forms for different interests

  
  
  Arguments about judicial review of agency actions
  
  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

  • Claim: Broad appeals to Article III courts allow individuals to challenge unlawful agency action

  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.

  1.Argument: Limited appeals of agency action to Article III courts protect against government overreach

  • Claim: Limited appeals of agency action to Article III courts prevent judicial overreach into agency decisionmaking

  2.Argument: Limited appeals of agency action to Article III courts conserve judicial resources

  • Claim: The federal administrative judiciary was created out of practical necessity as an alternative to Article III courts

  3.Argument: Limited appeals of agency action to Article III courts protect statutory intent

  • Claim: Limited appeals of agency action to Article III courts prevent the judiciary from subverting the will of Congress

  
  
• Arguments related to agency control

  
  

  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

  • Claim: Agency procedures leverage expertise and promote accountability

  2.Argument: Agency expertise contributes to regulatory stagnation

  • Claim: Agency expertise results in sub-optimal policy

  3.Argument: Administrative judges lack the expertise to preside over adjudication

  • Claim: Administrative judges lack the expertise to preside as impartial adjudicators

  4.Argument: Administrative judges' expertise meets the demand for adjudicative roles

  • Claim: Administrative judges' expertise satisfies current agency standards for administrative adjudicators

  
  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

  • Claim: Adjudication transfers judicial power to the executive

  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

  4.Argument: The Administrative Procedure Act should be resuscitated and agencies should revive formal procedures

  • Claim: Formal rulemaking provides value during technical deliberations

  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

  • Claim: The U.S. Supreme Court recognized the political accountability of agencies

  2.Argument: Agencies engage in constitutional interpretation without oversight by the political branches

  • Claim: Shadow administrative constitutionalism allows agencies to create internal constitutions without political oversight

  3.Argument: Agencies operate outside of the bounds of political control

  • Claim: Agencies effectively operate with autonomy free from oversight by the political branches

  4.Argument: Independent agencies are politically accountable

  • Claim: Independent agencies are the result of political compromise

  5.Argument: Independent agencies are unconstitutionally insulated from control by the elected executive

  • Claim: Cause-removal protections prevent the executive from controlling independent agencies
  • Claim: Independent agencies evade political accountability by circumventing OIRA review

  
  
• Arguments related to legislative control

  
  

  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

  • Claim: Delegation shifts responsibility for policymaking from Congress to agencies

  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

  • Claim: The nondelegation doctrine is rooted in 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

  • Claim: The Constitution does not prohibit delegation
  • Claim: The Sweeping Clause permits delegation

  2.Argument: Rulemaking is not the same as lawmaking

  • Claim: Rulemaking is not a legislative power akin to lawmaking

  3.Argument: U.S. Supreme Court has upheld virtually every statute challenged on nondelegation grounds

  • Claim: Almost every nondelegation challenge has failed

  4.Argument: Agency law rules permit delegation

  • Claim: The First Restatement of Agency supported 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

  6.Argument: Allowing executive agencies to exercise the discretion legislative delegation confers lets them adjust to unintended consequences

  • Claim: Article I makes revising harmful legislation too difficult

  7.Argument: Advocates of the nondelegation doctrine really just oppose expansive federal regulations

  • Claim: Nondelegation doctrine claims are really about opposing federal regulation

  8.Argument: Statutes giving open-ended authority to executive or judicial actors are not actually delegations

  • 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

  
  

  
  
• Arguments related to judicial control

  
  

  Arguments in favor of judicial deferenceArguments 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

  • Claim: Nineteenth-century court respect for customary interpretation was not the same as Chevron deference

  
  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

  • Claim: Separation of powers requires deference

  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

  
  
• Arguments related to executive control

  
  

  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

  2.Argument: Limits on the presidential appointment and removal powers reflect changing historical circumstances

  • 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

  • Claim: The U.S. Constitution allows Congress to regulate the presidential appointment and removal power

Overviews of the administrative state

This section provides overviews of key administrative state topics, each separated by specific subject areas.

See also

• Five pillars of the administrative state: Agency control
• Five pillars of the administrative state: Executive control
• Five pillars of the administrative state: Judicial control
• Five pillars of the administrative state: Legislative control
• Five pillars of the administrative state: Public control

External links

• Search Google News for this topic

v • e The Administrative State Main The Administrative State Project main page •Administrative State Project Index •Glossary of administrative state terms •Quotes about the administrative state •Administrative state •Rulemaking •Deference •Adjudication •Nondelegation doctrine •Ballotpedia's administrative state legislation tracker Pillars Agency control •Executive control •Judicial control •Legislative control •Public control Reporting Changes to the Federal Register •Completed OIRA review of federal administrative agency rules •Federal agency rules repealed under the Congressional Review Act •Historical additions to the Federal Register, 1936-2016 Laws Administrative Procedure Act •Antiquities Act •Civil Service Reform Act •Clayton Antitrust Act •Communications Act of 1934 •Congressional Review Act •Electronic Freedom of Information Act •Federal Food, Drug, and Cosmetic Act of 1938 •Federal Housekeeping Statute •Federal Reserve Act •Federal Trade Commission Act of 1914 •Freedom of Information Act •Government in the Sunshine Act •Independent Offices Appropriations Act of 1952 •Information Quality Act •Interstate Commerce Act •National Labor Relations Act •Paperwork Reduction Act •Pendleton Act •Privacy Act of 1974 •Regulatory Flexibility Act •REINS Act •REINS Act (Wisconsin) •Securities Act of 1933 •Securities Exchange Act of 1934 •Sherman Antitrust Act •Small Business Regulatory Enforcement Fairness Act •Truth in Regulating Act •Unfunded Mandates Reform Act Cases Abbott Laboratories v. Gardner •A.L.A. Schechter Poultry Corp. v. United States •Association of Data Processing Service Organizations v. Camp •Auer v. Robbins •Chevron v. Natural Resources Defense Council •Citizens to Preserve Overton Park v. Volpe •Federal Trade Commission (FTC) v. Standard Oil Company of California •Field v. Clark •Food and Drug Administration v. Brown and Williamson Tobacco Corporation •Humphrey's Executor v. United States •Immigration and Naturalization Service (INS) v. Chadha •J.W. Hampton Jr. & Company v. United States •Lucia v. SEC •Marshall v. Barlow's •Massachusetts v. Environmental Protection Agency •Mistretta v. United States •National Federation of Independent Business (NFIB) v. Sebelius •National Labor Relations Board v. Noel Canning Company •National Labor Relations Board v. Sears, Roebuck & Co. •Panama Refining Co. v. Ryan •Securities and Exchange Commission v. Chenery Corporation •Skidmore v. Swift & Co. •United States v. Lopez •United States v. Western Pacific Railroad Co. •Universal Camera Corporation v. National Labor Relations Board •Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council •Wayman v. Southard •Weyerhaeuser Company v. United States Fish and Wildlife Service •Whitman v. American Trucking Associations •Wickard v. Filburn •Wiener v. United States Terms Adjudication (administrative state) •Administrative judge •Administrative law •Administrative law judge •Administrative state •Arbitrary-or-capricious test •Auer deference •Barrier to entry •Bootleggers and Baptists •Chevron deference (doctrine) •Civil servant •Civil service •Code of Federal Regulations •Codify (administrative state) •Comment period •Compliance costs •Congressional Record •Coordination (administrative state) •Deference (administrative state) •Direct and indirect costs (administrative state) •Enabling statute •Ex parte communication (administrative state) •Executive agency •Federal law •Federal Register •Federalism •Final rule •Formal rulemaking •Formalism (law) •Functionalism (law) •Guidance (administrative state) •Hybrid rulemaking •Incorporation by reference •Independent federal agency •Informal rulemaking •Joint resolution of disapproval (administrative state) •Major rule •Negotiated rulemaking •Nondelegation doctrine •OIRA prompt letter •Organic statute •Pragmatism (law) •Precautionary principle •Promulgate •Proposed rule •Publication rulemaking •Regulatory budget •Regulatory capture •Regulatory dark matter •Regulatory impact analysis •Regulatory policy officer •Regulatory reform officer •Regulatory review •Rent seeking •Retrospective regulatory review •Risk assessment (administrative state) •Rulemaking •Separation of powers •Significant regulatory action •Skidmore deference •Statutory authority •Substantive law and procedural law •Sue and settle •Sunset provision •Unified Agenda of Federal Regulatory and Deregulatory Actions •United States Code •United States Statutes at Large Bibliography "Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000) "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017) "Constitutionalism after the New Deal" by Cass R. Sunstein (1987) Federalist No. 23 by Alexander Hamilton (1787) "From Administrative State to Constitutional Government" by Joseph Postell (2012) "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002) "Rulemaking as Legislating" by Kathryn Watts (2015) "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016) "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017) "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007) "The Rise and Rise of the Administrative State" by Gary Lawson (1994) "The Study of Administration" by Woodrow Wilson (1887) "The Threat to Liberty" by Steven F. Hayward (2017) "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008) Agencies Administrative Conference of the United States •United States Civil Service Commission •U.S. Government Accountability Office •U.S. Office of Information and Regulatory Affairs •U.S. Office of Management and Budget