For many Americans, the rise of the administrative state signaled the deterioration of the framers' vision for American government. Gone are the days where the Legislative Branch primarily enacted laws, the Executive Branch enforced laws, and the Judicial Branch interpreted laws and adjudicated disputes. Today, the American form of government is an administrative state. Agencies possess legislative, executive, and judicial powers and wield those powers to administer critical government programs-often at the directive of the Executive Branch.
Scholars have repeatedly criticized the evolution of the administrative state as unlawful, unconstitutional, and have even gone so far as to call it a "bloodless constitutional revolution." But who is to blame for the creation of the administrative state? Does the blame fall on Franklin Roosevelt's New Deal? There is no doubt that the "growth of the administrative state can be traced, for the most part, to the New Deal," but perhaps the New Deal "merely served as the occasion for implementing the ideas of America's Progressives."
This Comment argues that Congress has primarily contributed to the growth and empowerment of the administrative state. Not merely through the traditional process of creating administrative agencies, but through Congress's abdication of its legislative power to the President, who in turn utilizes the administrative agencies as tools to do his bidding. This Comment further argues that once Congress has delegated its legislative power to the President, and the President has empowered the administrative state, the Judicial Branch generally defers to both the President and the administrative state. This has emboldened the administrative state and enabled it to flourish.
This Comment begins with a brief introduction of the historical principles underlying the American form of government and how, against the backdrop of the framers' intent, the administrative state undermines these principles. Part I discusses a broad overview of the current administrative state. It specifically considers what roles Congress and the President have traditionally played in the administrative state. Part II discusses Trump v. Hawaii and the Trade Expansion Act. Both illustrate Congress 's abdication of its legislative power and the President's use of that authority to empower the administrative state to act. Part III of the Comment discusses the two ways in which the judiciary branch acquiesces to actions taken by both the President and administrative agencies.
Lindsey Martin, The Administrative State: Congress's Role in Perpetuating It, 41 Campbell L. Rev. 559 (2019).