Constructing the Constitutional Legitimacy of the Administrative State: Congress and the Settlement of 1946

by Johnathan O’Neill

Abstract

Today the legitimacy of the administrative state is being questioned more deeply than at any time since the New Deal. This article puts Congress at the center of the story to understand how this question was addressed in the New Deal’s immediate aftermath. It argues that Congress sealed the legitimacy of the administrative state in three pieces of legislation passed in 1946: the Employment Act, the Administrative Procedure Act, and the Legislative Reorganization Act.

This legislation marked the “settlement of 1946,” in which Congress acknowledged that modern governance required management of the economy and delegation of power to bureaucracies, but also that the administrative state must be disciplined with recognizably constitutional principles and procedures. It was through this legislative dynamic, traced in each of the three laws passed in 1946, that Congress acted to moderate constitutional conflict and legitimate its resolution: only it could accommodate and validate the administrative state while also limiting and controlling its reach.

From this perspective, the constitutional changes of the New Deal look less like an event centered solely on the Supreme Court and its jurisprudence and more like an adaption that required action by the national legislature to be regarded as legitimate.