Burying the Constitution Under a Tarp (Troubled Assets Relief Program) (Separation of Powers in American Constitutionalism‪)‬

Asking whether the modern administrative state is unconstitutional is like asking whether Yale Law School has a tendency to emphasize theory. "Yes" does not do justice to the question. The modern administrative state is not merely unconstitutional; it is anti-constitutional. The Constitution was designed specifically to prevent the emergence of the kinds of institutions that characterize the modern administrative state. The founding generation would have been dumbstruck by the governmental edifice that has arisen from its handiwork. Just consider that, during the founding era, the grand constitutional disputes about administration involved such matters as whether Congress's enumerated power to "establish Post Offices and post Roads" (1) allowed Congress to create new post roads or merely to designate existing state-created roads as postal routes, (2) and whether Congress could let the President or Postmaster determine the location of postal routes or instead had itself to designate the routes town by town. (3) The architects of the modern administrative state fully understood the constitutional obstacles in their path. Administrative law students and scholars are familiar with James Landis's dismissive attitude toward the Constitution's separation of powers, as articulated in The Administrative Process. (4) Equally revealing are the earlier comments of Frank Goodnow in 1911, when progressives were still struggling to give administrative governance a firm foothold in the American system: