Regulating the Regulators: Separation of Powers and the Executive Branch

Abstract

The administrative state has grown to touch almost every aspect of American’s lives. From health policy, securities fraud, and even sexual assault allegations, unelected bureaucrats have become the unofficial policymakers of our modern society. Contrary to the intentions of our founding fathers, bureaucratic processes have usurped the law-making function of our legislature.

This thesis conducts a critical historical analysis of a variety of documents – including Supreme Court opinions, congressional debates, law review articles, and scholarly literature to craft an answer to the questions: How has the power of unelected bureaucrats expanded beyond the intent of our founders throughout the course of our nation’s history and what impact has that expansion had on the execution of our basic democratic principles? Additionally, it utilizes case studies of three agencies to go beyond theoretical debates about abstract principles such as liberty, due process and democracy, to highlight real world consequences perpetuated by our current administrative state.

It finds that the basis for our modern administrative state started in early progressive ideology espoused by the likes of Woodrow Wilson. The implementation of this ideology manifested itself most clearly in Franklin Delano Roosevelt’s New Deal policies and, save a brief interruption in 1935, the Court has been a willing participant in legislative delegation of power to the Executive Department. Towards the end of the 20th century, the Court further abdicated its responsibility to serve as a check on this expanse of power in Chevron v. NRDC and Auer v. Robbins. The consequences of this ideology are extensive. In addition to the imposition of financial hardships to business, state governments, and individuals at the hands of regulatory agencies, the administrative state violates the very liberty that is guaranteed to citizens of the United States. Individuals who are called in front of courts for violations of various regulations often face biased judges, who either work for the agency itself or who have committed themselves to deferring to the administration almost de novo.

The implications of this thesis highlight the need for a systematic review, by the Legislature and the Executive, but fundamentally by the Court, of the role they serve in protecting individual liberty. It does not call for a total annihilation of our modern administrative state, but, at the very least, a standard of review in Court cases that seeks first to protect individual liberty and then to preserve the structure of government.