How the Administrative State Undermines Constitutional Governance

In the United States, the rise of the administrative state represents one of the most significant, yet underappreciated, challenges to constitutional governance. Over decades, unelected bureaucracies have grown to exercise immense influence over policymaking, regulation, and enforcement—powers traditionally reserved for elected representatives and the judiciary. This expansion undermines the principles of accountability, separation of powers, and democratic legitimacy at the heart of the American constitutional order.

The Growth of the Administrative State

The administrative state refers to the vast network of federal agencies and regulatory bodies tasked with implementing laws and overseeing complex policy areas. While these agencies originated to address the needs of an evolving industrial society, their unchecked growth has led to a fundamental shift in governance. Today, federal agencies not only enforce laws but also write regulations with the force of law. Scholars such as Phillip Hamburger argue that this “fourth branch of government” operates outside the constitutional framework, where bureaucrats—shielded from electoral accountability—make decisions that profoundly impact American lives (*Hamburger, P. 2014. Is Administrative Law Unlawful?).

This shift has been facilitated by Congress, which increasingly delegates broad legislative powers to agencies. For example, the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) regularly issue regulations that shape entire industries. While these actions address technical issues, they often involve policy judgments traditionally reserved for lawmakers. Such delegation allows Congress to abdicate its responsibilities, leaving unelected officials to fill the void.

Undermining Democratic Accountability

One of the gravest concerns about the administrative state is its lack of accountability to the electorate. In a constitutional democracy, power derives from the consent of the governed, expressed through regular elections. Bureaucrats, however, are not subject to this electoral check. Instead, they operate under a system of internal rules and procedures that insulate them from direct oversight.

This insulation erodes public trust and distorts the principle of representative government. As Kenneth Warren highlights, “more power to unelected bureaucrats weakens democratic governance by removing key policy decisions from elected bodies” (Warren, K. 2019. Journal of Chinese Governance). The result is a growing sense of alienation among citizens, who feel powerless to influence decisions made by distant, unaccountable agencies.

Concentration of Power and the Separation of Powers

The administrative state also disrupts the constitutional separation of powers. The Founders designed the U.S. government with three distinct branches—legislative, executive, and judicial—to prevent any single entity from accumulating too much power. Administrative agencies, however, often combine these powers within a single body. They write regulations (legislative), enforce them (executive), and adjudicate disputes (judicial). This concentration of power violates the constitutional safeguards that prevent tyranny.

In cases such as Chevron U.S.A., Inc. v. Natural Resources Defense Council (1984), courts have further empowered the administrative state by deferring to agency interpretations of ambiguous statutes. This “Chevron deference” weakens judicial oversight and allows agencies to expand their regulatory reach with minimal constraint. As Justice Neil Gorsuch has noted, such deference risks turning bureaucrats into lawmakers, blurring the lines of constitutional authority (Gorsuch, N. 2016. Judicial Review and the Rule of Law).

Impact on Individual Liberty and Governance

The unchecked power of the administrative state comes at a significant cost to individual liberty and effective governance. Americans now face a labyrinth of regulations that affect every aspect of their lives—from how businesses operate to how private property is used. The sheer complexity and scope of administrative rules often overwhelm citizens and small businesses, who lack the resources to navigate the system.

Furthermore, this bureaucratic overreach undermines innovation and economic growth. As James Postell argues in Bureaucracy in America, the administrative state’s regulatory burden stifles entrepreneurship and subjects individuals to arbitrary decisions by unelected officials. The result is a system that favors bureaucratic inertia over dynamic, accountable governance (Postell, J. 2017. Bureaucracy in America).

A Call for Reform

Addressing the administrative state’s excesses requires a renewed commitment to constitutional principles. Congress must reclaim its legislative authority by limiting the delegation of power to federal agencies. Additionally, judicial oversight must be strengthened to ensure agencies operate within clear legal boundaries. Reforms such as the REINS Act, which requires congressional approval for major regulations, represent a step toward restoring democratic accountability.

At the Center for Realpolitik and American Values, we advocate for a governance model that respects the Constitution’s framework of limited, accountable government. The administrative state must be reined in to preserve the separation of powers, protect individual liberty, and restore public trust in democratic institutions.

Conclusion

The rise of the administrative state poses a profound challenge to America’s constitutional governance. By concentrating power in unelected bureaucracies, it undermines democratic accountability, erodes the separation of powers, and jeopardizes individual liberty. Restoring balance requires a commitment to constitutional principles and a recognition that governance must remain rooted in the consent of the governed. The administrative state cannot—and must not—supplant the role of elected representatives and the judiciary in shaping the nation’s future.

Sources

• Hamburger, P. (2014). Is Administrative Law Unlawful?
• Warren, K. (2019). Has Democratic Governance Been Compromised by the Administrative State? Journal of Chinese Governance.
• Postell, J. (2017). Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.
• Gorsuch, N. (2016). Judicial Review and the Rule of Law.
• Rourke, F. (1987). Bureaucracy in the American Constitutional Order.