The Administrative State: Constitutional Limits and Practical Realities

Introduction

As the U.S. Supreme Court hears Trump v Slaughter,[1] discussions will address the modern administrative state and its extraordinary authority over economic activity, state sovereignty, and individual rights. Federal agencies issue regulations with the force of law, enforce compliance through administrative and civil penalties, and adjudicate disputes traditionally reserved to Article III courts. While agency proponents emphasize expertise and efficiency, there are profound concerns about separation of powers, democratic accountability, and the displacement of legislative responsibility, an erosion of federalism’s essential ingredients.

Today, federal agencies occupy a central role in American governance, regulating vast sectors of the economy and shaping environmental, labor, financial, and healthcare policy. This consolidation of legislative, executive, and judicial authority lies at the core of modern constitutional debate. Critics argue that the administrative state departs from the Constitution’s carefully calibrated structure, which deliberately fragments power to safeguard liberty, even at the expense of efficiency.

This article examines the tension through landmark Supreme Court decisions, the rise of independent agencies, doctrines of judicial deference, and recent efforts to restore constitutional limits. For regulated entities, these developments open new avenues to challenge regulatory overreach; for policymakers, they reaffirm the necessity of legislative clarity, constitutional fidelity, and accountable governance.

I. Federalist Foundations and Constitutional Structure

The Constitution establishes a government of limited and enumerated powers grounded in separation of powers and federalism.[2] James Madison warned in Federalist No. 47 that the accumulation of legislative, executive, and judicial powers in the same hands constitutes tyranny.[3] Federalist No. 51 emphasized that liberty depends not on the virtue of officeholders, but on structural safeguards that divide power and enable each branch to check the others.[4]

The administrative state challenges this design by consolidating rulemaking, enforcement, and adjudication within single entities, while insulating officials from meaningful political control.[5] Federalist No. 70 defended a unitary executive as essential to accountability, energy, and decisiveness.[6] This consolidation weakens the necessary elements of federalism, accountability and constitutional protections of liberty.[7]

II. Delegation and the Nondelegation Doctrine

Article I vests all legislative power in Congress.[8] While Congress may authorize executive officials to implement laws, it may not abdicate its responsibility to make fundamental policy decisions.[9] The nondelegation doctrine emerged to preserve this boundary and ensure democratic accountability. In J.W. Hampton, Jr. & Co. v. United States,[10] the Supreme Court upheld congressional delegation so long as Congress provides an “intelligible principle” to guide agency discretion. Although framed as a limitation, this standard has proven permissive, enabling Congress to delegate broad discretion to agencies. During the New Deal era, Panama Refining Co. v. Ryan[11] and A.L.A. Schechter Poultry Corp. v. United States[12] briefly enforced meaningful limits by invalidating statutes that granted unfettered discretion.

Since 1935, however, the Court has not invalidated a statute on nondelegation grounds. Federalist critics argue that this retreat permits Congress to avoid political accountability by transferring controversial policy decisions to unelected administrators.

III. Independent Agencies and the Fourth Branch Problem

Independent agencies occupy a uniquely controversial position within the administrative state.[13] These agencies are typically led by multi-member commissions whose officials enjoy for-cause removal protections, limiting presidential oversight.[14]

In Humphrey’s Executor v. United States,[15] the Supreme Court upheld such protections, distinguishing between purely executive officers and officials performing so-called “quasi-legislative” and “quasi-judicial” functions. Federalist critics argue that this distinction lacks textual grounding in the Constitution and undermines Article II accountability, effectively creating a de facto fourth branch of government.[16]

IV. Administrative Adjudication and Article III Concerns

Administrative agencies routinely adjudicate disputes involving private rights, imposing civil penalties, and resolving enforcement actions.[17] These proceedings often lack Article III judges, life tenure, and jury trials.

In Lucia v. SEC,[18] the Supreme Court held that administrative law judges are “Officers of the United States” subject to the Appointments Clause.[19] The decision highlighted constitutional vulnerabilities in agency adjudication and reinforced Federalist concerns regarding judicial independence and due process.

V. Judicial Deference and the End of Chevron

Chevron U.S.A. Inc. v. Natural Resources Defense Council [20] instructed courts to defer to reasonable agency interpretations of ambiguous statutes.[21] This doctrine dramatically expanded agency authority by allowing agencies to interpret the scope of their own power.[22]

Critics long argued that Chevron conflicted with Article III and Federalist principles by transferring interpretive authority from courts to agencies.[23] It is also assailed that the agencies engage in writing, enforcing, and interpreting law. In Loper Bright Enterprises v. Raimondo,[24] the Supreme Court overruled Chevron, reaffirming that courts—not agencies—bear the duty to interpret the law. This decision marks one of the most significant recalibrations of administrative power in modern history.[25]

VI. Major Questions Doctrine and Structural Limits

In West Virginia v. EPA,[26] the Supreme Court articulated the Major Questions Doctrine, holding that agencies must point to clear congressional authorization when asserting regulatory authority over issues of vast economic and political significance. The Court ruled the EPA exceeded its Clean Air Act authority by trying to dictate energy sources, not just emissions. Chief Justice Roberts stated the EPA can’t use Section 111 to force a shift in the power grid’s energy mix.[27] The doctrine reflects renewed insistence that major policy decisions belong to Congress, not administrative agencies. For regulated entities, the doctrine provides a powerful tool for challenging expansive regulatory initiatives. For policymakers, it underscores the necessity of legislative clarity and accountability.

VII. Removal Power and Presidential Accountability

Presidential control over executive officers is central to democratic accountability. In Free Enterprise Fund v. PCAOB,[28] the Supreme Court invalidated dual for-cause removal protections. In Seila Law LLC v. CFPB,[29] the Court struck down single-director independent agency structures insulated from presidential removal.[30] These decisions reaffirm the Federalist principle that executive power must remain accountable to the President, and, to the electorate.

VIII. Practical Implications for Clients and Regulated Entities

For businesses and regulated entities, recent developments in administrative law present both risk and opportunity.[31] Agency actions once assumed immune from challenge may now face heightened judicial scrutiny.[32] Regulated parties should evaluate enforcement actions, rulemakings, and adjudications through the lens of constitutional structure, appointments, removal authority, and statutory clarity.[33] Pierce’s core premise in “The Role of Agencies in Regulating the Economy,” is that agencies are central to governing, creating “legislative rules,” and courts need to recognize their vital role in interpreting and adapting laws to complex economic realities.

IX. Implications for Policymakers and Legislators

For policymakers, renewed judicial enforcement of structural limits underscores the importance of legislative responsibility. Broad delegations and ambiguous statutes invite judicial resistance and regulatory instability.[34] Durable policymaking requires clarity, accountability, and respect for constitutional boundaries.[35]

Conclusion

On balance, Article II and Article III at are risk of losing their significance by virtue of the Humphrey’s and the Chevron U.S.A.’s decisions. The administrative state remains one of the most consequential constitutional developments of the modern era. The consolidation of power strains separation of powers, diminishes democratic accountability, and risks eroding liberty, hence, eroding the essentials of federalism. Recent Supreme Court decisions signal not the dismantling of administrative governance, but a recalibration toward constitutional structure. For clients and policymakers alike, understanding these limits is essential to navigating regulatory authority in a manner consistent with the Constitution’s design. Federal agencies wield enormous power over businesses, states, and individuals. While administrative expertise is often cited as necessary, as Pendleton and Rosenbloom suggest, the Constitution’s Federalist structure was designed to restrain power – not concentrate it, as Sunstein and O’Neal suggested and underscored by the decision in West Virginia v. EPA.  The actions of administrative agencies increasingly rival statutory law in both scope and practical effect, often operating beyond meaningful political control. It is concerning that within the processes of federalism, an element equivalent to a Trojan horse has metastasized into a constitutional crisis causing erosion of federalism as intended.

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[1] Donald J. Trump, President of the United States, et al. v. Rebecca Kelly Slaughter, et al., No. 25-332 (2025); Rebecca Slaughter v. Donald Trump, 25-5261 (D.C. Cir.); Slaughter v. Trump, 1:25-cv-00909 (D.D.C. July 17, 2025). 

[2]Herring, E. Pendleton, The Administrative State Public Administration and the Public Interest,  (McGraw-Hill Book Co., 1936). This classic work is one of the foundational texts in the study of the administrative state. It lays out the argument for the necessity of administrative agencies but can be counterbalanced with Federalist critiques.

[3] The Federalist No. 47 (James Madison).

[4] The Federalist No. 51 (James Madison).

[5]Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994) (discusses the historical development of the administrative state and its constitutionality and challenges the intent of separation of powers).

[6] The Federalist No. 70 (Alexander Hamilton).

[7]Cass R. Sunstein, The Law of Administrative Discretion, 92 Yale L.J. 1006 (1983). (insights into administrative discretion and the challenges it poses to the doctrine of separation of powers.

[8] U.S. Const. art. I, § 1.

[9] M. J. O’Neill, The Nondelegation Doctrine in the Supreme Court’s Recent Administrative Law Decisions, 58 Admin. L. Rev. 307 (2006). (discusses modern interpretations of the nondelegation doctrine and how it limits Congress’s ability to delegate legislative power to agencies). O’Neill contended that the Court’s “permissive stance” renders the nondelegation doctrine a constitutional fiction, rather than a meaningful check on legislative power. Noting the problem that Congress delegates vast lawmaking power to agencies due to modern complexities, creating tension with the nondelegation principle (Congress can’t give away its core legislative power). The Court uses the “intelligible principle” test (requiring Congress to provide guiding standards) but interprets it so loosely (asking if discretion is “somewhat confined”) that it always finds a principle, effectively upholding nearly all delegations.

[10] J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).

[11] Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

[12] A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

[13] Philip Hamburger, Is Administrative Law Unlawful? (University of Chicago Press, 2014). (discussing how administrative agency law itself is a violation of the Constitution’s separation of powers, aligning with Federalist principles).

[14] Lawrence Lessig, The Constitution of Agency: Essays on the History of the American Constitution (Oxford University Press, 2008). (critiques the autonomy of independent agencies and their potential threat to democratic accountability).

[15] Humphrey’s Executor v. United States, 295 U.S. 602 (1935).

[16] David H. Rosenbloom, Public Administration: Understanding Management, Politics, and Law in the Public Sector (McGraw-Hill, 2008) Rosenbloom discusses how independent agencies fit into the broader administrative framework and whether they align with constitutional separation of powers.

[17] West Virginia v. EPA, 597 U,S. __ (2022). The Supreme Court struck down the Obama-era Clean Power Plan, articulating the Major Questions Doctrine (MQD) to rule the EPA exceeded its authority by forcing a massive shift in energy generation. This decision is groundbreaking in its limitations on agency authority, particularly as it relates to issues of major political and economic significance. Numerous legal scholars have already analyzed its implications. In a 6–3 decision, the Court ruled that the EPA did not have the authority to implement this “generation-shifting” approach. MQD is A legal principle stating that if a federal agency wants to decide an issue of “vast economic and political significance,” it must point to clear congressional authorization.

[18] Lucia v. SEC, 585 U.S. ___ (2018).

[19] Steven G. Calabresi and Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press, 2008). This work argues that independent agencies are a constitutional anomaly because they undermine presidential control over the executive branch. The book can be cited to critique the legitimacy of independent agencies, like the CFPB or SEC, under Federalist principles.

[20] Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984).

[21] Cass R. Sunstein, Chevron’s Quiet Revolution, 87 Georgetown L.J. 477 (1998) Sunstein’s article is a seminal piece on the Chevron doctrine and judicial deference, discussing the evolution of Chevron and its impact on agency power. This piece is especially relevant given recent cases like Loper Bright and the reassertion of judicial limits.

[22] John F. Manning, Legislative Powers and Judicial Power: The Nondelegation Doctrine in the Modern Era, 75 Geo. L.J. 339 (1987) Manning explores the tension between judicial and legislative power, particularly how agencies’ rulemaking authority fits within the Constitution’s design.

[23] Andrew M. Grossman, “Chevron’s End? The Death of Chevron and Its Aftermath” (Cato Institute, 2023) (examining the Supreme Court’s current direction on judicial deference post-Chevron, addressing West Virginia v. EPA and Loper Bright).

[24] Loper Bright Enters. v. Raimondo, 603 U.S. ___ (2024).

[25] John F. Manning, The Chevron Doctrine, Judicial Review, and the Structure of the Administrative State, 87 Texas L. Rev. 274 (2008) Manning critically examines the Chevron decision, its implications for judicial review, and the constitutional concerns it raises regarding delegation.

[26] West Virginia v. EPA, 597 U.S. ___ (2022).

[27] David C. Vladeck, Chevron, Legislative Power, and Judicial Deference, 85 Texas L. Rev. 1065 (2007) (discussing Chevron in context of agency power and judicial deference and explores Court’s reconsideration).

[28] Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010).

[29] Seila Law LLC v. CFPB, 591 U.S. ___ (2020). Supreme Court finding the CFPB’s single-Director structure unconstitutional, violating separation of powers by vesting significant power in an unelected official; Chief Justice Roberts emphasized that “executive officials must be subject to the ongoing supervision and control of the elected President” and that the CFPB Director wields such power, unlike typical multi-person agency heads, necessitating presidential removal power, with Justice Kagan dissenting, stressing Congress’s power to structure agencies and the availability of judicial review.

[30] Seila Law LLC v. CFPB (Presidential Control over Independent Agencies – view on removing protections for heads of independent agencies).

[31] Richard Epstein, How the Administrative State Has Evolved and What it Means for Regulatory Reform, 101 N.Y.U. L. Rev. 439 (1996) (discussing the evolution of administrative rulemaking and its implications for industries and regulated entities).

[32] Anne Joseph O’Connell, Political Control of the Bureaucracy, 91 Virginia L. Rev. 1071 (2005) (examining mechanisms by which elected officials can control the bureaucracy, relevant for considering the practical implications of judicial restraint in agency decision-making).

[33] Richard J. Pierce Jr., The Role of Agencies in Regulating the Economy, 35 Hastings L.J. 355 (1984) (discussing the importance of Chevron deference in regulatory rulemaking and provides a balanced view of both its strengths and constitutional drawbacks).

[34] Vladeck, Chevron, Legislative Power, and Judicial Deference.

[35] Philip Hamburger, The Administrative Threat, (Encounter Books, 2017).