The legislature cannot give away what the people gave only to it

The National Review's lead puts the problem cleanly: the power that agencies wield is fundamentally legislative, not executive. I would not quarrel with that framing for a moment. The moment you understand it, the entire architecture of the modern administrative state becomes constitutionally uncomfortable.

Article I, Section 1 of the compact the convention drafted is not a polite suggestion. It says that all legislative power granted herein is vested in a Congress — a body chosen by the people at stated intervals, answerable to the people at the next election, and composed of members who must themselves live under the laws they write. That is the structural bargain. The branch that makes binding rules must be the branch that faces the voter.

When Congress delegates broad rulemaking authority to an executive agency — authority wide enough that the agency can, in substance, decide what the law means — something has gone wrong with that bargain. The agency head is appointed, not elected. The staff drafting the rule are appointed, not elected. The regulated public has no lever to pull except a lawsuit, which is slow, expensive, and uncertain. I grant that the complexity of a modern industrial economy exceeds anything the convention could have imagined; I am genuinely humble on that point. But complexity of subject matter cannot, by itself, dissolve the constitutional requirement that the lawmaking power remain where the people placed it.

The deeper danger — and this is what the National Review piece touches, even if it does not fully develop it — is what I would call the faction problem of concentrated rulemaking. In Federalist No. 10, I argued that the great cure for faction is an extended republic: many interests, spread across a broad geography, forced to negotiate and compromise in a representative assembly. A single agency, staffed by people of similar professional formation, responsive to a single executive, is the structural opposite of that cure. It concentrates rather than diffuses; it insulates rather than exposes. A powerful faction need capture only one department, not the entire legislature, to bend the rule of law to its purposes.

I will not pretend to know the specific facts of Trump v. Slaughter — I have only the National Review's characterization, and I mark anything beyond it as inference. But the small-c constitutional problem the headline names is not small at all. It is the question of whether the written compact still governs, or whether, through the slow accumulation of delegated authority, we have assembled a fourth branch that the people never ratified and cannot directly correct. The proper remedy is not judicial abolition of the administrative state overnight — that would produce its own disorder — but a steady legislative reclamation of the decisions that are, in truth, legislative in character. Congress must be willing to write the hard choices into statute and to own them at the ballot box. That accountability is not a burden on representative government. It is representative government.