Administrative Apparition: Resurrecting the Modern Administrative State’s Legitimacy Crisis with Agency Law Analysis

There is an enduring discord among academic and political pundits over the state of modern American government, with much focus on the ever-expanding host of federal agencies and their increasing regulatory, investigative, enforcement, and adjudicatory authority. The growing conglomerate of federal agencies, often unfavorably regarded as the “administrative state,” has invited decades of debate over the validity and proper scope of this current mode of government. Advocates for and against the administrative state are numerous, with most making traditional constitutional arguments to justify or delegitimize the current establishment. Others make philosophical, moral, or practical arguments in support or opposition. Though some contest it, the administrative state faces a crisis of legitimacy. This article addresses what is described here as the “Approval Defense,” an argument that justifies the administrative state on grounds that, even if unconstitutional, all three branches of federal government and the public have subsequently approved of our modern form of government, so it is legitimate on that basis. In essence, the Approval Defense’s claim of legitimacy is one of ratification. Using similar agency law principles, this article seeks to demonstrate the flaws with a justification based on ratification and show that until there has been an adequate explanation of its lawful basis, the administrative state’s legitimacy crisis will simply not go to its grave