BYU Law Review
Abstract
Scholars have proclaimed the administrative state to be “Under Siege” or subject to a “Never-Ending Assault.” Was the election of President Donald Trump on November 5, 2024, the sixth, if not yet the seventh, day around the walls?
This seems an appropriate time to consider the present and future of opposition to the administrative state—something that has come to be dubbed “anti-administrativism.” The first task, as is usually the case when one seeks intellectual clarity, is to figure out what one is talking about. What is this “anti-administrativism”? Without knowing the answer to that seemingly simple question, one cannot accurately describe, defend, critique, or bemoan it. Accordingly, my aim in this essay is to provide some clarity about the various strains of anti-administrativism and to offer some thoughts about the future of one specific strain within that broad family of ideas: the constitutional case against the administrative state.
Part I of this essay briefly surveys the history of the past thirty years regarding challenges to the administrative state.
Part II identifies three distinct strains of anti-administrativism, rooted in concerns about, respectively, the extent of the federal government, the form of the federal government, and the constitutionality of the federal government. These strains might well overlap in many cases, but they are conceptually distinct. One can endorse or critique one without endorsing or critiquing the others, and the kinds of arguments that one would make for or against claims within each strain might have no force, or even relevance, to claims within other strains. Thus, any clear discussion of anti-administrativism must pay close attention to which variety of anti-administrativism is on the table at any given moment.
Part III focuses on the constitutional case against at least some key features of the administrative state. The goal is not to rehash familiar arguments but to identify possible gaps in the besieging forces by highlighting some areas in which originalist scholarship needs additional work. I focus on subdelegation of legislative power, presidential control of executive administration, and the reach of judicial power, all of which raise questions that originalists have not wholly answered, in large part because they have not always been asking the right questions.
Rights
© 2025 Brigham Young University Law Review
Recommended Citation
Gary Lawson,
The Rise and [?] of Anti-Administrativism,
51 BYU L. Rev.
163
(2025).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol51/iss1/8
