For the first century of its existence, the United States federal government was relatively small, primarily concerning itself with national defense, foreign relations, the postal service, and the collection of tariffs. But as the nation rapidly industrialized in the late nineteenth century and confronted the catastrophic collapse of the Great Depression in the 1930s, the old system proved inadequate. To manage a modern, immensely complex industrial society, Congress began creating federal administrative agencies and delegating its regulatory powers to them. Beginning with the Interstate Commerce Commission in 1887, and exploding during the New Deal and the Great Society of the 1960s, the “administrative state” was born.
Today, federal agencies—such as the Environmental Protection Agency (EPA), the Securities and Exchange Commission (SEC), and the Food and Drug Administration (FDA)—govern virtually every aspect of American life, from the safety of the food we eat to the stability of our financial markets and the quality of the air we breathe.
However, the rise of the administrative state immediately triggered profound constitutional problems. Article I of the Constitution explicitly states that “All legislative Powers herein granted shall be vested in a Congress of the United States”. Yet, modern administrative agencies exercise all three powers of government simultaneously: they act as legislatures by writing rules that have the force of law, as executives by bringing enforcement actions against violators, and as judiciaries by employing administrative law judges to adjudicate those violations. To the Founding Fathers, this concentration of power was terrifying; James Madison explicitly warned that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny”.
To solve this constitutional dilemma, early conservative courts attempted to enforce the “nondelegation doctrine,” a principle asserting that Congress simply cannot transfer its exclusive lawmaking powers to the executive branch. In 1935, the Supreme Court struck down two major pieces of New Deal legislation, famously ruling in A.L.A. Schechter Poultry Corp. v. United States and Panama Refining Co. v. Ryan that Congress had engaged in an unconstitutional abdication of its duties.
But these 1935 rulings were the high-water mark for the nondelegation doctrine. Following the intense political battles of the New Deal, the Supreme Court retreated, recognizing a stark practical reality: Congress simply lacks the time, flexibility, and specialized technical expertise required to micro-manage a modern economy. How many elected representatives, after all, understand the chemical intricacies of drug pharmacology or the highly complex derivatives traded on Wall Street?. To function, the federal government had to rely on scientific experts and specialized bureaucrats. The Supreme Court eventually conceded that as long as Congress provided an “intelligible principle” or general policy directive to guide an agency, the delegation of power was constitutional. For nearly 90 years since 1935, the Court has not struck down a single federal law for violating the nondelegation doctrine.
In recent years, however, a fierce conservative backlash against the administrative state has reached the highest levels of the judiciary. Viewing agencies as unaccountable “behemoths” that stifle business and consolidate unchecked power, the current conservative supermajority on the Supreme Court has engineered new legal tools to severely limit agency authority.
Chief among these new tools is the “major questions doctrine”. Under this judicially created rule, if an agency attempts to resolve a major question of “vast economic and political significance,” the courts will assume the agency lacks the power to do so unless Congress has provided “clear congressional authorization”.
The Court has used the major questions doctrine to repeatedly dismantle bold executive actions. In West Virginia v. EPA (2022), the Court struck down the EPA’s “Clean Power Plan,” ruling that the agency could not mandate a nationwide shift away from coal-fired power plants to combat climate change without highly specific instructions from Congress. In 2023, the Court applied the same doctrine in Biden v. Nebraska to strike down the Secretary of Education’s plan to cancel over $400 billion in student loan debt, arguing that such a massive economic intervention required more than a general statutory authorization to “waive or modify” student loan provisions during emergencies.
Critics of the major questions doctrine, such as Justice Elena Kagan, argue that it is simply a “get-out-of-text-free card” used by conservative justices to usurp both Congress’s policy-making authority and the Executive Branch’s expertise. They warn that because Congress is often paralyzed by partisan gridlock, demanding hyper-specific legislation for every modern crisis effectively means the government cannot function.
The administrative state is the engine of modern American governance, but its constitutional foundation remains highly contested. As the courts increasingly substitute their own judgments for those of expert agencies, the battle over the administrative state has become one of the defining constitutional struggles of the 21st century, asking fundamentally whether a government designed in the 18th century can effectively regulate the complex realities of the present.