The administrative state is a term used to describe the power that some government agencies have to write, judge, and enforce their own laws. Since it pertains to the structure and function of government, it is a frequent topic in political science, constitutional law, and public administration.
The phenomenon was relatively unknown in representative democracies before the end of the 1800s. Its sudden rise has generated considerable scholarship, writing, and study to understand its causes and effects, and to square it with previous notions of law and governance.Frankfurter, F. (1926). Task of Administrative Law. U. Pa. L. Rev., 75, 614.Loughlin, Martin (2017) Evolution and Gestalt of the state in the United Kingdom. In: Cassese, Sabino, von Bogdandy, Armin and Huber, Peter, (eds.) The Max Planck Handbooks in European Public Law: The Administrative State. OUP, Oxford, UK. ISBN 9780198726401, section: "The origins of the administrative state", page 25.Carolan, Eoin, 'Institutional Legitimacy and the Administrative State', The New Separation of Powers: A Theory for the Modern State (Oxford, 2009; online edn, Oxford Academic, 1 Feb. 2010), https://doi.org/10.1093/acprof:oso/9780199568673.003.003, accessed 17 Oct. 2023.Trondal, J. (2023). An Introduction to the Administrative State. In: Governing the Contemporary Administrative State. European Administrative Governance. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-28008-5_1
Delegation of law-making The administrative state is created when legislative (law-making) bodies, like the U.S. Congress or the U.K. Parliament, delegate their lawmaking powers to administrative or private entities.
Nondelegation is a legal principle that a branch of government cannot authorize another entity to exercise powers or functions assigned to itself. It is sometimes used to argue that the power of administrative agencies to write laws is unconstitutional, illegal, or otherwise invalid, or that it imposes restrictions on administrative agencies in their exercise of these powers.Crosscurrents in Anglo-American Administrative Law, William and Mary Law Review, Volume 27 (1985-1986), https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2126&context=wmlr
Judicial deference The second power of the administrative state comes from judicial deference. In technical terminology, judicial deference is a standard of judicial review that applies when a court defers to an agency's interpretation of a law. Sometimes the law is made by the legislature, and sometimes by the agency itself.Wagstaff, Robert H., 'Judicial Deference', Terror Detentions and the Rule of Law: US and UK Perspectives, Terrorism and Global Justice Series (2013; online edn, Oxford Academic, 16 Apr. 2014), https://doi.org/10.1093/acprof:oso/9780199301553.003.0010, accessed 17 Oct. 2023.
In other words, the agency exercises the same ability of a court to judge and interpret laws. These interpretations bind other courts to arrive at the same interpretation, as long as the interpretation is reasonable, even if an independent court would have arrived at a different interpretation.
This ceding of judicial authority to unelected bodies is the source of considerable scholarship. The power of the administrative state is related to the concept of a privative clause, which also restricts a courts ability to interpret law.Dyzenhaus, D. (2006). Taking the administrative state seriously. In The Constitution of Law: Legality in a Time of Emergency (pp. 121-173). Cambridge: Cambridge University Press. While continental civil law systems tend to constrain administrative power through the notion of Rechtsstaat, or a system or rules, common law jurisdictions tend to rely only judicial oversight.Ernst, Daniel R., Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 (New York, 2014; online edn, Oxford Academic, 19 June 2014), https://doi.org/10.1093/acprof:oso/9780199920860.001.0001, accessed 17 Oct. 2023.
Law enforcement
Many administrative agencies are authorized to enforce their own rules, as well as those of the legislature. This includes the power to issue commands to police, or maintain their own separate police forces.
Administrative orders Many agencies have the power to issue commands to police, much like a court order. For example, the BBFC, a British agency with the power to allow or ban films, can issue an order to a "Trade Standards enforcement officer" to seize banned films, but they cannot arrest people. By contrast, the Chinese GAPP can issue decrees to seize banned books, films, writing, or other media, as well as arrest and imprison criminal violations of publication regulations.
Police and security forces
Many administrative agencies operate their own police forces, with the power to arrest, search, seize items, surveil citizens, and jail them for a period before trial. These police go by a variety of names, including special agents or peace officers in the U.S., enforcement command or "officer with constabulary power" in the U.K., general terms like "officers", civilian police, and specialized terms like les douaniers for French Customs.
Procedural rights Procedural rights pertain to discussions surrounding individual due process and the position individuals hold in administrative agency adjudications and enforcement measures. These rights also extend to the public's ability to engage in agency rule formulation and decision-making events.Metzger, G. E. (2017). 1930s Redux: The Administrative State Under Siege. Harv. L. Rev., 131, 1.
The extent to which administrative due process and procedural rights should be protected within the administrative state remains a contentious issue among policy experts. This discourse largely revolves around differing views on constitutional and statutory obligations related to due process and procedural rights, as well as the extent of these protections when citizens engage with administrative entities.
Structure, authority and control
Although most administrative bodies reside within the executive branch, some are set up as independent entities or fall under the legislative or judicial branches. Such organizational differences influence both the supervision of these agencies and their cross-branch interactions.
Executive control The most common power arrangement is control by the executive. This is the case in the United States, where almost all administrative agencies are controlled by the executive.
In this case, leaders of administrative agencies can be removed and reappointed by the executive, but there may be laws that make it difficult or impossible for the executive to fire or restructure the entire agency.
Civil service control Leaders of administrative agencies can be directly appointed by the civil service bureaucracy.
This is more common in countries with a powerful civil service, like the United Kingdom;Wilson Wong, From A British-style Administrative State To A Chinese-style Political State: Civil Service Reforms In Hong Kong After The Transfer Of Sovereignty, The Brookings Institution, 2002-2003, https://www.brookings.edu/wp-content/uploads/2016/06/wong2003.pdf for example, the leadership of Ofcom, Ofqual, and Ofsted are all appointed by the Secretaries of State, career civil servants not elected but promoted from within the civil service's own bureaucracy.
Self-regulatory organizations Self-regulatory agencies are controlled by members of the private industries they are supposed to regulate. They are typically professional bodies. Examples include the U.S. Financial Industry Regulatory Authority (FINRA), the U.K. Financial Conduct Authority (FCA), the American Medical Association (AMA), medical specialities such as the American Board of Internal Medicine (ABIM), the U.K. Nursing and Midwifery Council (NMC), and the Institute of Chartered Accountants in England and Wales. They are typically authorized by special laws that name them as representatives and regulators of their industry.
In this case, leaders of the organization are appointed by professionals, corporations, or other authorized private entities.
Directorate control The European Commission is more complicated, and controlled via a directorial system, that is, the president is chosen by the 27 heads of state or government of the European member countries, and confirmed by the European Parliament. The president chooses commissioners to head directorates-general, analogous to ministers at the head of ministries or U.S. cabinet secretaries of executive departments. In the U.S., the legislature writes laws which can be vetoed by the executive, and the veto can be overridden by a two-thirds vote of the legislature. In the E.U., it is reversed: the president writes laws that the European Parliament can veto, but parliament cannot write its own laws, giving the president of the commission legislative power, right of initiative, and an absolute veto over the will of parliament. The European Commission further exercises lawmaking ability directly without parliamentary approval through implementing and delegated acts.
Agency-controlled agencies Sometimes, administrative agencies can themselves create other administrative agencies with delegated lawmaking ability; for example, U.S. Congress authorizes the SEC to make 'regulations', and the SEC authorized the self-regulatory organization FINRA to make 'rules', through a process known as "registration". Unlike the SEC, which can make rules at will, FINRA must have their rules approved by the SEC. Laws, regulations, and rules, are all binding on members of the financial industry; however, FINRA rulebreaking is never criminal and thus can not result in jail time.Pacella, J. M. (2012). If the Shoe of the SEC Doesn't Fit: Self-Regulatory Organizations and Absolute Immunity. Wayne L. Rev., 58, 201.
By country United States
In the United States, almost all federal agencies are ultimately accountable to the executive, and the heads of the agencies can be removed and reappointed at the will of the president.
United Kingdom
In the U.K., there is an abundance of terminology to describe U.K. governmental and semi-governmental agencies, including executive ministries, non-ministerial government departments (NMGD), non-departmental public body (NDPD), and quango, originally short for "quasi-autonomous non-governmental organization", but which are in fact partly controlled or financed by the government.
Laws, codes, regulations and rules Laws made by administrative agencies are typically distinguished from laws written by the legislature, and given a separate term like "regulations" or "rules", or referred to in codified form as "codes".
In the U.S., federal regulations are codified into the U.S. Code of Federal Regulations (CFR), a complement to the compilation of all laws, the U.S. Code (USC). Administrative regulations comprise 242 volumes and more than 185,000 pages, four times larger than the U.S. Code of Laws.Susan E. Dudley; Milestones in the Evolution of the Administrative State. Daedalus 2021; 150 (3): 33–48. doi: https://doi.org/10.1162/daed_a_01858
History Historian Francis Fukuyama traces the concept of a modern administrative state with merit-based hiring to the French Revolution.
In the mid-1800s in the United Kingdom, increased trade activity, rising population, and migration into larger and larger urban hubs caused the social structures that held together traditional administrative arrangements to disintegrate. Urban growth frequently posed the biggest challenges in regions where local administration was least effective. Reflecting on Manchester in 1835, Alexis de Tocqueville observed that "everything in the exterior appearance of the city attests the individual powers of man; nothing the directing powers of society".