For almost a century, the Supreme Court has not invalidated a law using the nondelegation doctrine. Recognizing that Congress seldom has expertise to address the ever-increasing complexities of society, the Court has long held that Congress can legislate broadly and seek help from federal agencies to fill up the details. Accordingly, courts defer to Congress’s delegation choices, as long as it lays down an intelligible principle to guide the agencies entrusted with implementing legislation. Under that approach, the Court has upheld broad delegations of authority to federal agencies. This approach has been the bedrock of meaningful agency action, especially in health policy in which agencies must leverage their expertise to respond to highly technical issues, emergencies, advances in technology, and the need to address health disparities. While this deferential approach has guided the courts and Congress for decades, delegation is increasingly under attack. Braidwood Management, Inc. v. Becerra, which challenges the Affordable Care Act’s preventive services requirement, exemplifies nondelegation-based attacks on agency authority. With several members of the Supreme Court signaling interest in revisiting the current deferential delegation standard, Braidwood likely provides an opportunity for the Supreme Court to do so. Reinvigorating the nondelegation doctrine — coupled with the major questions doctrine and rolling back of Chevron deference — will hurt U.S. health policy. It will not only constrain how agencies work, but also aggrandize the courts and limit how Congress may achieve legislative goals.

The power afforded to the administrative state is heavily reliant on public trust and the perception of evidence-based agency decision-making. Organizational reputation is key to preserving regulatory power. However, recent investigations reveal that existing scientific integrity policies may not be sufficient to preserve the credibility of many federal agencies. In fact, a significant number of career scientists across various entities – including the FDA – have observed unreported incidents of political interference. While political influence exerted by the executive branch to set policy goals and determine agency priorities can be beneficial, political pressures must not undermine public trust in scientific agencies. Recently, public perception regarding the FDA’s COVID-19 response threatened to weaken the agency’s longstanding reputation as the gold standard of review. The COVID-19 pandemic publicized vulnerabilities that exist across agencies, as well as those that are unique to the FDA. The FDA’s evolution as an increasingly public health-focused agency that must function in the landscape of politicized science exposes the agency to a greater risk of political interference. After all, the FDA’s involvement in public health requires increased participation in non-ideal, value-based decision-making. Throughout its history, the FDA has managed to maintain its reputation through its firm responses to scandal. The COVID-19 pandemic provides a platform for the FDA to – once again – look introspectively and institute safeguards addressing vulnerabilities that plagued the agency’s pandemic response. This Article examines the FDA’s early COVID-19 response to propose reforms that promote meaningful transparency, public accountability, and scientific integrity.

This essay examines certain epistemic problems facing administrative states’ efforts to draft efficient regulations for their societies. I argue that a basic feature of the administrative state’s authority, namely its monopoly over the production of legally binding rules for all members of a geographically defined society, creates epistemic problems that impede efficient rule-making. Specifically, the administrative state’s monopoly over the production of legally binding rules prevents multiple public policies from being simultaneously implemented and compared. The resulting singularity of administrative states’ regulatory decisions prevents observation of the counterfactual effects of policies that were possible but which were not implemented. The absence of observable policy counterfactuals frustrates efforts to assess the efficiency of administrative states’ decisions, as it is impossible to determine whether different policies would have generated greater benefits at lower cost than the policy the state implemented. As these epistemic problems are derived from the singularity of administrative states’ decisions, they exist independently of principal agent problems, suboptimal incentives, or the preferences and capabilities of administrative personnel.

This essay uses a specific example—proposals to exclude sugary drinks from the Supplemental Nutrition Assistance Program (SNAP)—to explore some features of the contemporary U.S. administrative state. Dating back to the Wilsonian origins of the U.S. administrative state there has been uncertainty about whether we can and should separate politics and administration. On the traditional view, the agencies are to be kept separate from politics—technocratic and value-neutral—although they are indirectly accountable to the president and Congress. The SNAP exclusions example shows, however, that agencies often must make complex and controversial decisions on their own, decisions that go beyond value-neutral technocratic administration. When authorizing legislation has multiple goals, as we’ll argue is the case in the SNAP example, an agency will have to choose between conflicting statutory mandates. Moreover, as the SNAP example shows, agencies often face complex normative questions of ethics and justice that go beyond the question of how to balance competing aims. The appropriate response to the SNAP exclusions example is not to keep politics out of administrative decision-making, but to develop procedures that allow ethical and political questions to be addressed in agency policy-making, consistent with overarching commitments to fairness and democracy.

There has always been a tension, in theory, between the public accountability and the professional efficiency of the agencies of the administrative state. How has that tension been handled? What would it be like for it to be well handled?

When the modern administrative state emerged in America during the Progressive Era, at the beginning of the twentieth century, it was typically grounded on the premise that administrative officials are experts who should be insulated from politics. This theory, combined with emerging ideas of scientific management, contributed to the intellectual justification for the administrative state. However, progressives never fully reconciled the tension between this theory and the democratic nature of American politics. Because of this ambiguity and tension in the progressives’ theory of expertise, the politics/administration dichotomy was abandoned shortly after the administrative state was constructed. The place of expertise in the administrative state is still ambiguous, even in the twenty-first century.

Contemporary critiques of the administrative state are closely bound up with the distinctively American doctrine that republican freedom requires that the legislative, executive, and judicial powers be exercised by separate and distinct branches of government. The burden of this essay is to argue that legislative delegation and judicial deference to the administrative state are necessary, or at least highly desirable, features of a democratic separation of powers regime. I begin by examining the historical and conceptual roots of the separation of powers doctrine, paying particular attention to the unique way in which it was adapted to fit the American case. I then examine three concerns that the resulting constitutional system raises about the republican freedom of those who are subject to it—which I call the accountability, legitimacy, and stability concerns—and argue that the administrative state is a useful, albeit imperfect, tool for reducing the unavoidable tension between these concerns. The thrust of this discussion is to push us away from “in principle” objections to the administrative state, and back toward the kinds of prudential considerations that are associated with ordinary liberal politics. More importantly, the aim of the essay is to encourage sober reflection on the real dangers that face the American constitutional system under current circumstances.

Following the Roosevelt administration’s implementation of New Deal programs in the 1930s, the federal courts began to interpret the Constitution in a way that accommodated the rise of the “administrative state,” and bureaucratic policymaking continues to persist as a central feature of American government today. This essay submits, however, that the three pillars supporting the administrative state—the congressional delegation of Article I powers to the executive branch, the combination of powers within individual administrative entities, and the insulation of administrators from political control—might be reconsidered by the courts in the near future. After showing that the constitutionality of the administrative state has come under recent judicial scrutiny, the essay turns to the administrative law principle of deference, and argues that a reassessment of the Chevron doctrine seems imminent. Finally, the essay examines federal courts’ heavy use of “hard look” review as a means of curtailing agency discretion during recent administrations, and concludes that this judicial practice stands in uneasy tension with republican principles.

This article examines the politics of airline deregulation in the 1970s, and the events that led to the passage of the Airline Deregulation Act of 1978. It links the antibureaucratic, antiregulatory policies of the 1970s to ideas closely connected to the New Left, the counterculture, and other left-wing subcultures that dominated high and low thought in the 1960s. By linking this source of antibureaucratic sentiment to the politics of airline deregulation, this article suggests a new direction for historians who study the American state in the last decades of the twentieth century. As they focus their attention on the rise of market-based, neoliberal regulatory policies, they should look for their origins not only in the growing strength of the intellectual and political right, but also in the political thought and practice of the 1960s left.

This study focuses on how voters and politicians rationally select a preferred policy-making venue (Politician or Agency), and its implications for the principal-agent relationship between voters and politicians in a representative democracy. This study allows for incomplete information, as well as solving for the comparative static conditions pertaining to the extent that a politician's policy-making venue choices mirror those preferred by a representative voter. The comparative static results highlight when a politician (1) chooses the representative voter's preferred policy-making venue (Active or Passive Political Responsiveness); (2) is able to choose freely either policy-making venue without committing agency loss (Political Discretion); and (3) willing to deviate from the representative voter's preferred policy-making venue (Political Shirking). In contrast to the study by Spence, this study analytically demonstrates that one cannot infer that the benefits accrued from agency policy-making will necessarily exceed those from electoral institutions.