Gary Lawson's Critique of the Unconstitutional Post-New-Deal American Administrative State

In "The Rise and Rise of the Administrative State," Gary Lawson argues that the contemporary judicial interpretation of the Constitution's Interstate Commerce Clause is unjustifiably broad. Regulation of interstate commerce does not imply regulation of all activities affecting or affected by commerce. According to Lawson, "the Commerce Clause clearly leaves outside the national government's jurisdiction such important matters as manufacturing (which is an activity distinct from commerce), the terms, formation, and execution of contracts that cover subjects other than the interstate shipment of goods, and commerce within a state's boundaries." The progressives, in their attempt to expand government regulatory power, did not act within the bounds already allowed to government by the Constitution but rather exceeded those bounds by interpreting constitutional provisions with unwarranted breadth.

Lawson argues that the post-New-Deal administrative state which the progressives created is unconstitutional and that the progressives accomplished a "bloodless constitutional revolution" in instituting the administrative state. First, the administrative state undermines limited, constitutional government; today, the U.S. Congress exercises general legislative powers in contravention of the constitutional principle of limited powers; Congress often delegates these general legislative powers to administrative agencies in violation of Article I; these agencies are often independent of Presidential control in violation of Article II; they furthermore often exercise the judicial power in contravention of Article III. The "necessary and proper" clause has been construed as giving the government unenumerated powers provided that they somehow make the exercise of the enumerated powers more effective.

Moreover, the power of the purse has been construed as not only an unlimited spending authority, but also a virtually unlimited regulatory power. The administrative state also violates the constitutional non-delegation doctrine, whereby all legislative powers are vested exclusively in Congress and Congress cannot delegate them to other parties. Both Lawson and the progressives he critiques recognize that the modern administrative state could not function if Congress did not delegate fundamental policy decisions to administrative agencies-which is precisely Lawson's point: the Constitution does not enable such an expansive administrative state to arise because of the limitations imposed by the non-delegation doctrine.

The administrative state undermines the unitary executive and does not recognize the President's ability to nullify the actions of any of his subordinates in the executive branch. The Framers believed that unity of the executive branch-headed by a single President-is necessary to furnish the "decision, activity, secrecy, and dispatch" characterizing an energetic administration; it also increases the President's accountability to the people and renders it easier to confine the executive power within its proper bounds (Federalist 70); immunity of agency officials to Presidential oversight essentially creates a plural executive with significantly diminished accountability to the people. The administrative state has also destroyed the principle of the independent judiciary, since the administrative agencies often exercise judicial powers themselves-and if an agency's decision is appealed, the courts are required to strongly presume that the decision was correct. Finally, the administrative state undermines the principle of checks and balances by combining in the same agencies all three powers: executive, legislative, and judicial-the "very definition of tyranny" according to Federalist 47.

"Progressivism" has thus led to an immense increase in government power over private individuals in the economic sphere, at the expense of the principles of limited government, separation of powers, checks and balances, and negative individual rights. "Progressivism's" view of the evolving individual and evolving political and moral truths directly contradicts the Framers' recognition of fixed, self-evident truths and natural rights. Indeed, what "progressives" like John Dewey decried as "pseudo-liberalism" and tossed aside was the Framers' vision of limited government whose powers were carefully distributed by the Constitution so as to check one another, restrain political power, and permit the individual to flourish on his own.