One of the Progressive Era’s so-called innovations was the creation of “independent federal agencies.” As Market Institute Senior Fellow Norm Singleton explains in a recent piece for RealClearMarkets, these agencies have the power to write regulations, enforce them, and then adjudicate alleged violations in administrative courts — combining legislative, executive, and judicial functions in a way that “makes a mockery of the separation of powers which the drafters of the Constitution saw as central to the preservation of liberty.”
Courts Pushing Back
Fortunately, the tide is turning. In 2024, the Supreme Court overturned Chevron deference, which for decades allowed agencies to interpret ambiguities in federal law with little judicial pushback. More recently, the Court has used the “major questions” doctrine to limit agencies from reinterpreting their mandates without explicit congressional authority.
Singleton points to the latest challenge from the Fifth Circuit Court of Appeals, which ruled that the National Labor Relations Board (NLRB) was unconstitutional since it is part of the executive branch but insulated from presidential oversight. The court applied the “unitary executive theory,” which holds that the President must retain authority over all parts of the executive branch.
Risks and Reforms
As Singleton notes, while it is proper to rein in “extra-constitutional” agency power, the pendulum should not swing so far that it leaves the President with unchecked control. Congress has a role to play in restoring accountability. Specifically, Congress should:
- Pass the REINS Act, requiring major regulations with economic costs exceeding $100 million annually to be approved by both chambers and signed into law.
- Eliminate administrative law judges, ensuring that Americans accused of violating federal rules are tried in independent federal courts.
- Strengthen oversight so that neither agencies nor the President can undermine due process.
Restoring Constitutional Government
As Singleton concludes, these reforms would not “neuter” the NLRB, the FTC, or any other federal agency. Instead, they would “restore some semblance of constitutional government to the administrative state.”
The administrative state has grown far beyond what the Constitution’s framers intended. Recent court decisions show there is a way back — if Congress has the courage to act.
Read more at RealClearMarkets by clicking here.
