Dismantling the Administrative State

In recent years, the foundations of America’s vast administrative bureaucracy—the so-called “Administrative State”—have come under renewed scrutiny. In 2022, the U.S. Supreme Court issued two landmark decisions that signal a serious reconsideration of how much power administrative agencies can wield absent clear authorization from Congress.

OSHA and the Coronavirus Mandate

The first of these decisions struck down a federal mandate issued by the Occupational Safety and Health Administration (OSHA), acting under presidential directive, which required employees to receive COVID-19 vaccinations or submit to weekly testing. The Court ruled that OSHA lacked the clear statutory authority to impose such a sweeping public health measure—a decisive rebuke to executive overreach.

EPA, Coal, and Clean Air

The second case involved the Environmental Protection Agency (EPA) and its attempt to regulate electric power generation under §111(d) of the Clean Air Act. A coalition of coal-producing states and industry actors challenged the EPA’s broad interpretation of its regulatory powers. The Court again sided with the challengers, finding that such transformative decisions require explicit authorization from Congress.

The Major Questions Doctrine

Both decisions are rooted in the “major-questions” doctrine—a judicial principle gaining renewed traction. It asserts that when an agency seeks to decide an issue of vast political or economic significance, it must have a clear and unambiguous mandate from Congress. This stands in contrast to the 1984 Chevron doctrine, under which courts deferred to agencies’ “reasonable” interpretations of ambiguous statutes.

With the Court reviving major-questions scrutiny, regulatory power is shifting away from unelected bureaucrats and back toward Congress—the elected representatives of the people. As Justice Gorsuch noted, agencies should not decide “major questions” without an express green light from Congress.

Origins of the Administrative State

The administrative state is not a constitutional invention. It was born in the 1930s as part of the New Deal, when Congress and the President—faced with the Great Depression—granted sweeping powers to newly created agencies. These “Alphabet Agencies” were permitted to issue regulations, enforce them, and adjudicate disputes—all functions traditionally separated among the legislative, executive, and judicial branches.

Legal scholars warned at the time that a de facto “fourth branch of government” was being created, unaccountable to the public. Over time, these agencies became self-perpetuating, shielded by the civil service system and rarely subject to real oversight.

Bureaucracy and Accountability

Today’s bureaucracies often operate with limited transparency. Reports from journalists, watchdogs, and even Congressional committees reveal persistent patterns of evasion and suppression. This culture of secrecy—whether driven by arrogance or misplaced paternalism—is incompatible with the American ideal of government accountability.

Agencies remain insulated from voter backlash, empowered by the Civil Service system and protected from consequences. This fundamental lack of accountability undermines both democratic legitimacy and constitutional balance.

The Non-Delegation Doctrine

Some Justices have begun signaling renewed interest in the “non-delegation” doctrine, which holds that Congress may not delegate its lawmaking authority without clear guidelines. In the early New Deal era, this doctrine was used to invalidate sweeping regulations before falling into disuse.

Justice Elena Kagan cautioned in 2019 that reviving non-delegation could render much of the modern government unconstitutional. But for others, that’s precisely the point—reasserting the Constitution’s demand that Congress legislate, not outsource its duties.

Restoring Constitutional Balance

Steve Bannon once declared that the Trump administration’s goal was the “deconstruction of the administrative state.” The Court’s recent embrace of the major-questions and non-delegation doctrines may be a step in that direction—not by executive fiat, but through constitutional principle.

What Americans have to gain is a rebalancing of federal power: lawmaking returned to Congress, accountability restored to the ballot box, and federal agencies returned to their proper, limited roles under the law.

Ask Congress to Do Its Job

It’s time to ask your elected representatives to step up. Ask them to write, debate, and pass laws rather than defer to unelected bureaucrats. Holding Congress accountable is not radical—it’s foundational to representative democracy.

Their duty is to “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty” for both today’s Americans and future generations. If they forget this duty, the Supreme Court is beginning to remind them.