Is the Administrative State Needed Because Congress Cannot Write Every Detail?

The claim

Defenders argue that modern government is too complex for Congress to legislate every detail, that agencies bring expertise and flexibility and that delegation of rulemaking power is a necessity of an advanced society.

The answer in three points

1. Article I vests all legislative powers in Congress. Madison warned that the accumulation of legislative, executive and judicial powers in the same hands is the very definition of tyranny. When an agency writes rules, enforces them and judges violations, it does all three.
2. Some filling of details is natural and permitted. The Court has said that Congress may delegate if it supplies an intelligible principle. The trouble comes when the delegation is so broad that the agency decides the policy, as in major questions affecting the economy and daily life. The Court said in West Virginia v. EPA (2022) that Congress must speak clearly when it gives an agency power over a question of vast economic and political significance.
3. Accountability is the point. Voters can remove members of Congress and cannot remove agency staff. When Congress passes broad laws and lets agencies decide the hard questions, legislators avoid responsibility. Requiring Congress to vote on major rules would restore it.

The remedy is not to abolish agencies but to restore the line between making law and applying it. When Congress writes clear laws and votes on major rules, the people's representatives answer for the results.

The numbers

• Article I, Section 1 of the Constitution provides that all legislative powers herein granted shall be vested in a Congress of the United States.
• The Supreme Court decided West Virginia v. EPA in 2022 by a vote of 6 to 3, applying the major questions doctrine.
• The Federal Register published 2,441 final rules in 2025 and 3,248 in 2024, while Congress enacts far fewer laws each year.

What they will say next

"Congress lacks the expertise." It can hold hearings, use staff and call experts. Where details are needed, it can write them in the statute or pass a law that gives specific authority.

"The pace of modern life demands speed." The Congressional Review Act and expedited procedures can help. Speed that skips accountability costs more.

"Courts will check abuse." They do, and the court cases take years, during which citizens are burdened.

"The nondelegation doctrine has been dead since 1935." The Court revived related ideas in recent decisions, and the debate continues.

A government of laws is made by the people's representatives.

"Congress has delegated since the 1790s." It has, in narrow ways with specific limits, such as setting duties within ranges. The question is the scale and the lack of limits in modern delegations, and courts have recognized that difference when asked.

Read more

• The Nondelegation Doctrine Says Congress Cannot Hand Its Job to Someone Else
• Madison Called It the Very Definition of Tyranny, and Agencies Hold All Three
• Five Times the Court Told an Agency That Big Questions Belong to Congress
• The Congressional Review Act Lets Congress Veto a Rule, if It Moves in Time