The progressive administrative state now seems entrenched in contemporary American political governance.  While progressivism first arose on the political scene in the late nineteenth century, and the administrative state came into being with the sudden increase in centralized government during the 1930s, the two came together only later in the twentieth century to form what is now known as the progressive administrative state.

The term administrative state refers to the reach and power of the vast web of administrative agencies that populate the executive branch of the U.S. government.  Administrative agencies, directed by the executive branch and run by unelected bureaucrats, possess the power to issue legally binding rules and adjudicatory orders.  The heads of agencies may be appointed by the President, and through these heads the agency may be influenced by the President or by Congress, but otherwise the agencies have no elected officials and sometimes little political accountability.  The rules issued by the wide array of federal executive agencies far outnumber the laws democratically enacted by Congress.

The term progressive refers to a political philosophy that favors an ever larger federal government that will assume ever more authority over social and individual life.  Progressives believe that modern life is so complex that it necessitates a pervasive central government run by elites who can direct society with enlightened expertise.  Progressivism mistrusts traditional cultural values and non-governmental social institutions, such as religion and local communities and civic voluntary organization, and believes that the private sector is the source of injustice.  Thus, a strong central government is needed as an antidote or override to those other institutions.

Since the 1960s, progressivism has also referred to a set of substantive ideological beliefs characterizing a leftist political agenda.  Thus, the progressive administrative state has used the power of big government to push progressive political goals.

The progressive administrative state has its historical roots in the New Deal agenda of the 1930s.  Progressives believed that only an unrestrained federal executive branch could remedy all the effects of the Great Depression, as well as engineer society so that such a calamity would never again occur.  The progressive mindset saw limited government, the private-sector economy, and the complex web of social and cultural institutions that characterized America since its colonial beginnings as means of oppression.  To progressives, individual liberty gave way to the power of big government to engineer society for individuals who do not have the expertise to adequately govern themselves.  Government freedom trumped the freedom of the individual.

The New Deal agenda, powered by progressive ideas, brought about a dramatic expansion of the federal government.  This expansion occurred through an increase in the size and reach of the administrative state, accompanied by the birth of many new federal agencies.  But underlying all this expansion was Congress, since only through congressional laws creating, empowering and funding administrative agencies could such an expansion occur.  In rulings that have endured to the present, the New Deal era Supreme Court held that Congress could delegate unlimited power to the administrative state.

Following the New Deal, the administrative state witnessed another significant expansion during the 1960s and 1970s, with the Great Society programs being administered by new and enlarged agencies.  During one of the most liberal periods in American political history, Congress enabled the federal executive branch, through its administrative agencies, to pursue a progressive agenda that steadily enlarged the sphere of the national government, while shrinking the social space left to all other non-governmental institutions.  A somewhat similar expansion occurred decades later, during the presidency of Barack Obama.

Although Congress plays an essential role in fueling the administrative state, primarily through its funding of the executive branch, for the most part the personnel and operations of the progressive administrative state have remained insulated from Congressional oversight.  This is shown by the fact that even when Congress is controlled by a party populated by members who advocate a less expansive, more accountable federal bureaucracy, Congress has been unable to decrease the size or reach of the administrative state.  The administrative state has become so intertwined in national life, so involved in so many aspects of social life, that any attempted cutback runs the risk of shutting down the government altogether.

Various scandals and controversies in recent years have shown how politically-biased the progressive administrative state has become.  The Internal Revenue Service, for instance, used its vast power to target conservative organizations that might be opposed to the progressive administrative state.  The Consumer Financial Protection Board’s acting head refused to recognize or yield to the agency head appointed by President Trump.  The Veterans Administration actively covered up its failures to provide timely and adequate care to veterans, all the while doling out large pay increases to agency officials.

The progressive administrative state has undermined vital non-governmental social and cultural institutions.  The Great Society programs of the 1960s and 1970s, for instance, eroded the family and neighborhood.  Federal land and environmental agencies have eroded the power of local government.  And more recently, the agencies implementing the Affordable Care Act directly attacked religion by forcing religious organizations to act against long-held beliefs.  But as all these different aspects of society are undermined, the progressive administrative state grows ever more powerful and becomes the only institution on which individuals can rely for support.

Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.


Following ratification of the U.S. Constitution, political philosophers described the federalism inherent in the document as America’s hallmark contribution to the eighteenth century science of political governance.

Defined as a system of dual sovereignty, federalism envisions a constitutional order in which national and state governments each possess their own sphere of autonomy and authority.  Whereas the concept of separation of powers operates on a horizontal level, ensuring the autonomy of the different branches (legislative, executive and judicial) within any one level of government (state or national), federalism operates vertically, ensuring the autonomy of those different levels.  Both federalism and separation of powers act as a coordinated system of checks and balances.  Separation of powers checks the various branches, while federalism checks the different levels of government.  Under federalism, autonomous states with their own sphere of power can help prevent a national government from abusing its power.

American federalism was not so much a deliberate political theory as it was a development of history.  Throughout the colonial period, federalism evolved out of necessity.  Because of the great distance between London and the American colonies, local government arose to fill the void.  While the British parliament provided centralizing governance, local and colonial governments in America provided the day-to-day governance.  This scheme not only allowed the colonists to address their own local concerns, it supplied a political experience and structure that would be invaluable once independence from England was declared.  Consequently, when America designed its own constitutional structure, federalism naturally formed a vital foundation of that structure, ensuring the dual sovereignty of state and national governments.

Although there is no specific federalism provision in the U.S. Constitution, just as there is no specific separation of powers provision, federalism pervades the constitutional structure, which recognizes the autonomy of the states while also limiting the ability of the federal government to infringe on that autonomy.  The closest to a specific federalism provision in the U.S. Constitution is the Tenth Amendment, which states that all powers not specifically granted to the federal government are reserved to the states.

The U.S. Senate, prior to the Seventeenth Amendment providing for popular election of senators, once reflected federalism concerns.  Under the original Constitution, the House of Representatives was directly elected by the voters, but the Senate was chosen by the state legislatures.  This system gave states a greater voice in the makeup of the federal government.  It also created a sharper distinction and hence balancing function between the state-chosen Senate and the popularly-elected House.

Aside from its historical basis in the American experience, federalism also served several important values.  Federalism provides a check on the abuse of national power.  It also supports the diversity of a sprawling nation.  Diverse state and local populations can shape local policy to their particular interests, whereas the federal government can only enact a one-size-fits-all policy for the entire nation.

Federalism enhances political accountability and trust.  The smaller the governmental unit, the closer it is to the electorate and the more accountable it is.  This higher degree of accountability in turn builds a higher level of trust in government.  And finally, federalism creates a more flexible system of political governance, since smaller government units are more able to experiment in their policies.

From its colonial beginnings until the early twentieth century, the American political system rested on a strong belief in federalism.  But this abruptly changed in the 1930s with Franklin Roosevelt’s New Deal agenda, which greatly boosted national power at the expense of the states.  Congress acquiesced in this expansion of the national executive branch, as did the Supreme Court, which essentially abandoned one hundred and fifty years of constitutional jurisprudence in allowing such an expansion.

For nearly a half-century after this New Deal constitutional revolution, the Court continued to disregard the federalism mandates of the Constitution.  Not until the mid-1990s did the Court reconnect with federalism.  Dubbed by the media as “the federalism revolution,” the Court’s revival of constitutional federalism coincided with President Bill Clinton’s assertion that “the era of big government is over.”  Nonetheless, the Court’s “federalism revolution” attracted intense opposition from the advocates of an all-powerful central government.  These advocates opposed federalism because of the potential limits it places on the unrestrained growth of the national government.

In U.S. v. Lopez, the Court upheld federalism by ruling that Congress could not invade areas traditionally controlled by state and local governments.  The Court struck down a federal law prohibiting guns within a certain distance of a school, ruling that schools were historically state and local concerns.  This decision contrasted with the New Deal-era decision in Wickard v. Filburn, where the Court ignored all distinctions between local and national.  In Wickard, the Court held that a farmer’s growing of wheat on his own land for his own use constituted an act of interstate commerce legitimately regulated by Congress.

Federalism not only limits the reach of the national government, it also allocates the use of legislative power among the different levels of government.  Legislative power is shared through a system of dual sovereignty between state and national governments, and Congress cannot use its power to threaten the autonomy of the other levels of government.

Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.


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The Bill of Rights comprises the first ten amendment to the U.S. Constitution.  These amendments — containing provisions addressing such matters as freedom of speech and religion, and freedoms from search and seizure and compelled self-incrimination – are often seen as concerned with individual liberties and hence reflecting a different focus than that of the U.S. Constitution, which primarily addresses government structure and powers.  Under this view, the Constitution and the Bill of Rights are seen as separate documents with separate aims.  However, both the Constitution and the Bill of Rights focus on limiting the power of the federal government, although in somewhat different ways.

The debate over ratification of the U.S. Constitution occurred primarily between two groups, known as the Federalists and the Antifederalists.  The former supported passage of the Constitution, with its creation of a strong federal government, while the latter opposed the Constitution, on the grounds that it gave too much power to a potentially abusive central government.  To secure passage of the Constitution, and to address the concerns of the Antifederalists, the Federalists promised that a Bill of Rights would be adopted once the Constitution was ratified.  Thus, the Bill of Rights came into existence through a compromise reached between the Federalists and Antifederalists over the issue of constitutional limits on federal power.

The limitations on government power imposed by the Bill of Rights differ from the limits imposed by the original Constitution.  Provisions on freedom of speech and religion, for instance, as contained in the First Amendment, place substantive restraints on the federal government.  These provisions restrict the federal government from acting in certain substantive areas – e.g., individual speech and religious exercise.  On the other hand, the limitations contained in the original Constitution tended not to deal with substantive areas or issues, but instead created structural limitations that restricted the exercise of government power in general.

Structural limits on government power consisted of the checks and balances imposed by the Constitution’s separation of powers, in which each branch of government could check the power exercised by the other branches, preventing those branches from overstepping their bounds.  Federalism also amounted to a structural limitation, since it allowed the various levels of government – e.g., state, local and federal – to serve as checks and balances on the other levels.

The Bill of Rights provided substantive limits that existed in addition to the structural limits provided in the original Constitution.  For instance, even if the federal government possessed the power to act in a certain way, it could not, pursuant to the First Amendment, use that power to infringe on the freedom of speech or religious exercise.  Consequently, as demanded by the Antifederalists, the Bill of Rights provided yet another level of control and restraint on the use of federal government power under the U.S. Constitution.

Although the Antifederalist concern about limiting the power of the federal government provided the initial impetus for the Bill of Rights, the Bill does more than simply provide a restraint on government action.  It seeks to preserve liberty by protecting particular areas traditionally considered essential to individual freedom and dignity.

In preserving these areas of individual freedom and autonomy, the Bill of Rights also helps to strengthen the democratic fabric of the American political system.  It does so by maintaining the foundations of a democratic society, which in turn sustains a democratic political order.  Individuals can hardly participate in the political process if they do not possess the freedom to speak out on public matters and to hear the viewpoints of others who possess a similar freedom.  Likewise, a political system can hardly be healthy and vibrant if the society underlying it does not reflect the full concerns and values of the individuals living in it.  A society in which individuals are unable to exercise their religious beliefs, for instance, cannot be a free and vibrant society that will produce a healthy democratic governance.

By restricting government’s power to encroach on various areas of liberty, the Bill of Rights attempts to preserve the freedom of individuals to shape and influence the democratic society to which they belong, which in turn shapes and influences the political culture of society, which in turn shapes and influences the actions of the government and the content of the law.  Thus, through the operation of the Bill of Rights, citizens possess greater opportunity to exercise the sovereign and democratic powers envisioned by the U.S. Constitution.

Patrick M. Garry is Professor of Law at the University of South Dakota.

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The Articles of Confederation provided America’s first form of government structure, in effect during the years immediately following independence from Britain and ending with the adoption of the U.S. Constitution in 1789.  The Articles created a very weak national governing structure, which resembled more of a loose confederation of the different states than a single, unified sovereign entity.

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