Abstract

Abstract This essay examines the constitutional muddle of the administrative state with reference to how agencies operate–it looks at a hedgehog's problem from the fox's perspective. Not only does the structure and delegated authority of administrative agencies often exist in substantial tension with the Constitution, but agencies regularly fail to act in a manner that promotes “constitutional values.” Drawing from my experience as regulatory czar, I explain that regulatory policy is frequently developed with little regard for separation of powers, political accountability, due process, or other values drawn from the Constitution. Proponents of the status quo thus cannot rely on such values to legitimize the ever-expanding activity of administrative agencies.

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