Administrative Law and the Executive

Administrative Law and the Executive

The administrative state is truly the status quo for how our government has operated for the last century. A large portion of the power of the federal government is exercised through administrative agencies.  Administrative law receives bipartisan support, and the volume of regulations enacted grows under the administrations of both parties. So, how does “who the President is” affect administrative agencies?

Executive branch agencies (such as the Department of Agriculture, Department of Education, Department of Energy, and many others) fall under the direct control of the President.  The President chooses agency heads, who in turn work with the career staff in their agencies to implement policies in line with the President’s policy goals. The agencies, like the President, exercise executive power in the creation and promulgation of national policies. In effect, the President delegates power to agencies, and the agencies’ connection to the President gives them some degree of democratic accountability.

“The executive authority, with few exceptions, is to be vested in a single magistrate.”

― Hamilton, Federalist No. 69

In contrast, Independent Regulatory Commissions or IRCs (such as the Federal Communications Commission, Federal Deposit Insurance Commission, Federal Election Commission, and the Federal Trade Commission)  are not subject to the direct control of the President, and instead, are headed by multi-member Commissions. Commissioners are a bipartisan commission appointed by the president, with a slight majority of the Commissioners being from the President’s party (for instance: the Federal Communications Commissioners were three Democrats and two Republicans under President Obama, and are three Republicans and two Democrats under President Trump).  Some argue that the lack of connection between the President and these agencies raises Constitutional questions about the source of the power they exercise.

Videos in this unit explore these questions, and more.

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9 of 9: Where Do Agencies Fit In Our Constitutional Scheme? [No. 86]

Administrative agencies have been a part of the executive branch since the earliest days of the Constitution. Professor Ilan Wurman explains that the agencies have grown both in numbers and in power. They often pass rules and regulations that operate ... Administrative agencies have been a part of the executive branch since the earliest days of the Constitution. Professor Ilan Wurman explains that the agencies have grown both in numbers and in power. They often pass rules and regulations that operate like laws and then enforce them in a way independent of the President. Does this mean that the agencies are unconstitutionally exercising power that belongs to the President alone?

Ilan Wurman is an associate professor at the Sandra Day O'Connor College of Law at Arizona State University, where he teaches administrative law and constitutional law. He is the author of A Debt Against the Living: An Introduction to Originalism (Cambridge 2017).

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

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