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.[1][2][3]
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.[4][5][6][7]
Delegation of Lawmaking
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.[8]
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.[9][10]
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.[11]
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.[12][13]
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.[14] 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.[15]
Many administrative agencies are authorized to enforce their own rules, as well as those of the legislature.[16] 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.[17] 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.[18]
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.[19]
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.[20]
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.[21]
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;[22] 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.[23][24][25]
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.[26][27][28][29] 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.[30] 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.[31][32] The European Commission further exercises lawmaking ability directly without parliamentary approval through implementing and delegated acts.[33][34][35][36]
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".[37] 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.[38]
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.
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".[39]
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.[40]
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".[5]
Political scientist Ronald J. Pestritto traces U.S. administrative state practices to the Progressive Era and argues that the administrative state runs counter to the U.S. Constitution: "The strong Progressive belief in the enlightenment and disinterestedness of administrators stands as an instructive contrast to the permanent self-interestedness that the Framers of the U.S. Constitution saw in human nature."[43] Pestritto also adds: "This is not to suggest that the Framers denied discretionary power to the national government . . . Rather, they understood that such discretion had to be channeled through the forms and law of the Constitution in order to be safe for liberty."[43] In 1887, the U.S. Congress established its first independent agency, the Interstate Commerce Commission, to regulate railroads.[44]
Pestritto also identifies Woodrow Wilson and Frank Johnson Goodnow as highly influential advocates of administrative law; Wilson was the 26th President of the United States, and Goodnow was founding president of the American Political Science Association. "Like Wilson, Goodnow argued that government needed to adjust its very purpose and organization to accommodate modern necessities," writes Pestritto.[43]
In 1926, future Supreme Court Justice Felix Frankfurter described the process by which government agencies were effectively writing laws, and characterized it as the most important development in law in his time:[45]
The widening area of what in effect is law-making authority, exercised by officials whose actions are not subject to ordinary court review, constitutes perhaps the most striking contemporary tendency of the Anglo-American legal order...These administrative complements are euphemistically called “filling in the details” of a policy set forth in statutes. But the “details” are of the essence...The control of banking, insurance, public utilities, finance, industry, the professions, health and morals, in sum, the manifold response of government to the forces and needs of modern society, is building up a body of laws not written by legislatures, and of adjudications not made by courts and not subject to their revision. These powers are lodged in a vast congeries of agencies. We are in the midst of a process, largely unconscious and certainly unscientific, of adjusting the exercise of these powers to the traditional system of Anglo-American law.
In 1932, the U.S. Supreme Court, in Crowell v. Benson, confirmed the legality of agency decision-making processes, emphasizing the role of agencies in relation to federal courts before the implementation of the Administrative Procedure Act.[46]
In 1935, through the case Humphrey's Executor v. United States, the court characterized independent federal agencies as having both legislative and judicial aspects. The ruling also highlighted the protections these agencies have against presidential removal.[47]
In 1946, the Administrative Procedure Act was introduced by Congress, providing a standard set of guidelines for federal agency decision-making and regulatory actions. This Act detailed both official and unofficial procedures.[48]:20–21
"The shift to a more modern administrative state was accompanied by an enormous growth in the size of government during the middle decades of the twentieth century," wrote Fukuyama in 2014.[49]
In 1973, the U.S. Supreme Court, in United States v. Florida East Coast Railway Co., determined that formal procedures are only necessary for agencies if a law mandates a specific type of hearing. This decision led to a rise in the use of less strict processes.
In 2000, in the case of Appalachian Power Company v. Environmental Protection Agency, the court mandated the EPA to withdraw a guidance document that brought about a regulatory alteration without adhering to mandatory regulatory procedures.[50]
In 2020, in Seila Law v. Consumer Financial Protection Bureau, the Supreme Court determined that limitations on the president's authority to dismiss singular leaders of independent federal agencies, in contrast to groups, infringe upon the separation of powers doctrine by curtailing executive oversight of such institutions.
Supra and Subnational Administrative States
While common examples of the administrative state are national legislatures delegating lawmaking power to national agencies, there are notable examples of entities within countries and supra-national entities creating administrative states.
The European Union has administrative agencies, often referred to as "bodies" or "agencies," which possess the authority to make specific types of regulations or decisions separate from the primary legislative institutions, the European Parliament and the Council of the European Union.[51] Since EU laws are made by the authority vested in the EU from various treaties ("primary law"), the law that the EU makes can be understood as secondary legislation.[52]
The administrative state of countries-within-countries, like Scotland, Wales, or Northern Ireland, can be seen as national or subnational agencies, like the Scottish Environment Protection Agency.
A third of land in the United States is owned by administrative agencies.
Nearly a third the total landmass of the United States is owned by federal agencies, like the BLM, NPS, and NFS, which all maintain separate police forces to enforce laws and determine the use of the land.[53][54]
In Italy, special Guardie Zoofile rescue animals in distress or protect them in wildlife; these guards are volunteer, private citizens of environmental and animal associations, authorized with the force of the functions and qualifications of the judicial police in animal-welfare matters by Italian law.[55] This power does not include hunting matters. Thus, environmental clubs function as quasi-governmental entities with law enforcement powers delegated by the government.[56][57]
Common examples of police powers
Not all administrative agencies maintain their own police; however, there are notable categories of agency that tend to maintain separate security forces.
Tax agencies commonly employ their own police, like the U.S. IRS Criminal Investigation and the Federal Tax Police Service of the Russian Federation. In the U.K., HMRC employs police to carry out uniformed (e.g. combatting misuse of red diesel) and investigative work (in the Criminal Investigation Branch). They exercise the powers granted under the Customs Management Acts and the Police and Criminal Evidence Act 1984, including arrest, search and detention of people and goods.
Environmental agencies employ police, like the Special Agents of the U.S. EPA,[58] the U.K. Environment Agency, Australia's RPNSA, and South Africa's CapeNature Biodiversity Crime Unit.[59] Common activities include stopping pollution criminal violations of environmental law. In Italy, special Guardie Zoofile, volunteers with police powers, rescue animals in distress and protect them in wildlife.
Labor agencies employ police, like the U.K. GLAA, the U.S. Department of Labor, and Singapore's Ministry of Manpower.[61] They typically enforce criminal violations of labor law, like the abuse of workers.
Financial agencies employ police with the power of arrest, like Nigeria's Economic and Financial Crimes Commission, U.S. SEC Division of Enforcement.[62] Since financial crimes often includes corruption, in which lawmakers or the police can be involved, financial crime enforcement is sometimes separated.[63]
The politics of Finland take place within the framework of a parliamentary representative democracy. Finland is a republic whose head of state is President Alexander Stubb, who leads the nation's foreign policy and is the supreme commander of the Finnish Defence Forces. Finland's head of government is Prime Minister Petteri Orpo, who leads the nation's executive branch, called the Finnish Government. Legislative power is vested in the Parliament of Finland, and the Government has limited rights to amend or extend legislation. The Constitution of Finland vests power to both the President and Government: the President has veto power over parliamentary decisions, although this power can be overruled by a majority vote in the Parliament.
Jurisdiction is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple levels.
The United Kingdom has three distinctly different legal systems, each of which derives from a particular geographical area for a variety of historical reasons: English law, Scots law, Northern Ireland law, and, since 2007, calls for a fourth type, that of purely Welsh law as a result of Welsh devolution, with further calls for a Welsh justice system.
Mass surveillance is the intricate surveillance of an entire or a substantial fraction of a population in order to monitor that group of citizens. The surveillance is often carried out by local and federal governments or governmental organizations, but it may also be carried out by corporations. Depending on each nation's laws and judicial systems, the legality of and the permission required to engage in mass surveillance varies. It is the single most indicative distinguishing trait of totalitarian regimes. It is often distinguished from targeted surveillance.
The European Anti-Fraud Office is a body mandated by the European Union (EU) with protecting the Union's financial interests. It was founded on 28 April 1999, under the European Commission Decision 1999/352. Its tasks are threefold:
Europol, officially the European Union Agency for Law Enforcement Cooperation, is the law enforcement agency of the European Union (EU). Established in 1998, it is based in The Hague, Netherlands, and serves as the central hub for coordinating criminal intelligence and supporting the EU's Member States in their efforts to combat various forms of serious and organized crime, as well as terrorism.
An administrative law judge (ALJ) in the United States is a judge and trier of fact who both presides over trials and adjudicates claims or disputes involving administrative law. ALJs can administer oaths, take testimony, rule on questions of evidence, and make factual and legal determinations.
The district magistrate, also known as the district collector or deputy commissioner, is a career civil servant who serves as the executive head of a district's administration in India. The specific name depends on the state or union territory. Each of these posts has distinct responsibilities, and an officer can assume all of these roles at once. The district magistrate is primarily responsible for maintaining law and order, while the district collector focuses on land revenue administration, and the deputy commissioner is in charge of overseeing developmental activities and coordinates government departments. Additionally, they also serve as election officers, registrar, marriage officer, licensing authority, and managing disaster responses, among other things. While the specific scope of duties may vary from state to state, they are generally similar. The district magistrate comes under the general supervision of divisional commissioner.
Judicial activism is a judicial philosophy holding that courts can and should go beyond the applicable law to consider broader societal implications of their decisions. It is sometimes used as an antonym of judicial restraint. The term usually implies that judges make rulings based on their own views rather than on precedent. The definition of judicial activism and the specific decisions that are activist are controversial political issues. The question of judicial activism is closely related to judicial interpretation, statutory interpretation, and separation of powers.
Data retention defines the policies of persistent data and records management for meeting legal and business data archival requirements. Although sometimes interchangeable, it is not to be confused with the Data Protection Act 1998.
French law has a dual jurisdictional system comprising private law, also known as judicial law, and public law.
Environmental crime is an illegal act which directly harms the environment. These illegal activities involve the environment, wildlife, biodiversity, and natural resources. International bodies such as, G7, Interpol, European Union, United Nations Environment Program, United Nations Interregional Crime and Justice Research Institute, have recognized the following environmental crimes:
The primacy of European Union law is a legal principle of rule according to higher law establishing precedence of European Union law over conflicting national laws of EU member states.
Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. In a judicial review, a court may invalidate laws, acts, or governmental actions that are incompatible with a higher authority. For example, an executive decision may be invalidated for being unlawful, or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers—the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.
The constitution of the United Kingdom comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no official attempt has been made to codify such arrangements into a single document, thus it is known as an uncodified constitution. This enables the constitution to be easily changed as no provisions are formally entrenched.
The area of freedom, security and justice (AFSJ) of the European Union (EU) is a policy domain concerning home affairs and migration, justice as well as fundamental rights, developed to address the challenges posed to internal security by collateral effects of the free movement of people and goods in the absence of border controls or customs inspection throughout the Schengen Area, as well as to safeguard adherence to the common European values through ensuring that the fundamental rights of people are respected across the EU.
Administrative law in Mongolia is the body of law that governs the activities of administrative agencies of the Mongolian government. These activities include rulemaking, adjudication, or the enforcement of a specific regulatory agenda.
Primary legislation and secondary legislation are two forms of law, created respectively by the legislative and executive branches of governments in representative democracies. Primary legislation generally consists of statutes, also known as 'acts', that set out broad principles and rules, but may delegate specific authority to an executive branch to make more specific laws under the aegis of the principal act. The executive branch can then issue secondary legislation, creating legally enforceable regulations and the procedures for implementing them.
The Investigatory Powers Act 2016 is an Act of the Parliament of the United Kingdom which received royal assent on 29 November 2016. Its different parts came into force on various dates from 30 December 2016. The Act comprehensively sets out and in limited respects expands the electronic surveillance powers of the British intelligence agencies and police. It also claims to improve the safeguards on the exercise of those powers.
Several allegations of unlawful campaigning in the 2016 EU referendum have been made. Some allegations were dismissed by the investigating bodies, but in other cases wrongdoing was established, leading to the imposition of penalties. Sanctions have included the levying of the maximum fine possible on Facebook for breaches of data privacy.
↑ Frankfurter, F. (1926). Task of Administrative Law. U. Pa. L. Rev., 75, 614.
1 2 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
↑ Monaghan, H. P. (1983). Marbury and the administrative state. Colum. L. Rev., 83, 1.
↑ 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.
↑ 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. doi:10.1017/CBO9780511618246.004
↑ 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.
↑ "Consolidated Version of the Treaty on European Union". Article 17 (7). Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.
↑ Kotanidis, Silvia. "Role and election of the President of the European Commission"(PDF). European Parliamentary Research Service. Retrieved 29 September 2022. The Treaty of Lisbon strengthened the role of Parliament further. Whilst previously, the nomination of a presidential candidate was merely 'approved' by Parliament (Article 214(2) TEC), Parliament now elects the candidate (Article 17(7) TEU), which places particular emphasis on the political linkage between Parliament and Commission.
↑ "Election of the European Commission President". www.consilium.europa.eu. Retrieved 29 September 2022. "European Council proposes a candidate [...], European Parliament elects [...], a new Commission President is elected.
↑ Klemperer, David. "EU institutions: how are the top jobs allocated?". www.instituteforgovernment.org.uk. Institute for Government. Retrieved 29 September 2022. According to the 2009 Lisbon Treaty, the Council, acting by qualified majority vote, proposes a candidate for European Commission President to the European Parliament. The candidate is either elected by the European Parliament, or, if they fail to obtain an absolute majority, rejected, in which case the process is repeated until a candidate is elected by the Parliament.
↑ Spasova R. Powers of the European Commission – delegated and implementing acts in practical terms. ERA Forum. 2021;22(3):507–21. doi: 10.1007/s12027-021-00677-3. Epub 2021 Oct 18. PMCID: PMC8522543.
↑ Bignami, Francesca. “Three Generations of Participation Rights before the European Commission.” Law and Contemporary Problems, vol. 68, no. 1, 2004, pp. 61–83. JSTOR, http://www.jstor.org/stable/27592077. Accessed 18 Oct. 2023.
↑ Strauss, P. L. (2021). "How the Administrative State Got to This Challenging Place". Daedalus. 150 (3): 17–32. JSTOR48616691.
↑ Fukuyama, Francis (September–October 2014). "America in Decay". Foreign Affairs. Archived from the original on 5 July 2015. Retrieved 28 November 2024.
↑ Roberta Panizza (2015). "EU Administrative Law"(PDF). www.europarl.europa.eu. Policy Department C: Citizens' Rights and Constitutional Affairs. European Parliament. PE 519-207. Retrieved 19 October 2023.James McBride (11 March 2022). "How Does the European Union Work?". Council on Foreign Relations. Retrieved 19 October 2023.Bauer, Michael W.; Trondal, Jarle (2015). "The Administrative System of the European Union". The Palgrave Handbook of the European Administrative System. European Administrative Governance. Springer. pp.1–28. doi:10.1057/9781137339898_1. ISBN978-1-349-46456-2.Lindseth, Peter L. (2010). "The Challenge of Legitimizing Europeanized Administrative Governance". Power and Legitimacy: Reconciling Europe and the Nation-State. Oxford University Press. pp.251–282. doi:10.1093/acprof:oso/9780195390148.003.0007. ISBN9780199866397.Stillman, Richard J. (1997). "American vs. European Public Administration: Does Public Administration Make the Modern State, or Does the State Make Public Administration?". Public Administration Review. 57 (4): 332–338. doi:10.2307/977316. JSTOR977316.
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