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Studying administrative law in law school, I don’t think we read anything that raised questions about the legitimacy of the agencies giving rise to to it. We took it as a given and picked up the story with the passage of the Administrative Procedure Act in 1946. We should have taken a look at the question of legitimacy in constitutional law, and probably did, though the standard New Deal account I would have received is extremely misleading.


Exercising executive, legislative and judicial powers, the agencies are a constitutional anomaly. When it comes to a government of limited powers based on the powers allocated and divided among three branches, the administrative agencies don’t really fit. I am honor bound to add that the Supreme Court doesn’t quite see things my way, although Douglas Ginsburg lucidly spells out elementary principles (and cites some relevant case law) in “Legislative powers: Not yours to give away.” Ginsburg quotes James Madison in Federalist No. 47 for the proposition that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, may justly be pronounced the very definition of tyranny.” Having Madison as your authority on the Constitution is not too shabby unless you think that history has rendered his teaching and his handiwork moot.


In The Constitution and the New Deal (reviewed here by Richard Morgan), G. Edward White quotes William Howard Taft eulogizing Chief Justice Edward White for his contributions to the “new field of administrative law.” Taft singled out cases reviewing actions of the Interstate Commerce Commission (RIP), the granddaddy of the supposedly independent regulatory agencies. Taft said that:


[t]he Interstate Commerce Commission was authorized to exercise powers the conferring of which by Congress would have been, perhaps, thought in the earlier years of the Republic to violate the rule that no legislative powers can be delegated. But the inevitable profess in exigencies of government and the utter inability of Congress to give the time and attention indispensable to the exercise of powers in detail forced the modification of the rule. Similar necessity caused Congress to create other bodies with analogous relations to the existing legislative, executive, and judicial machinery of the Federal Government, and these in due course came under the examination of this court. Here was a new field of administrative law which needed a knowledge of government and an experienced understanding of our institutions safely to define and declare.Scissors-32x32.png

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Professor Yarbrough has made the basic point in a message to us that cannot be repeated too often:




We need an updated online primer in American government and political thought. We all learn about the separation of powers and federalism, but don’t understand that these restraints do not operate in the administrative universe. Indeed, the administrative state was designed to overcome these obstacles. Our mission should be to educate Americans on the real effects of this turn toward administrative regulations and rules.


Who will answer the call?




We (myself included) just assume that these alphabet agencies can tell us how to live.

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