Why We Need the Administrative State

Why We Need the Administrative State: How Modern Government Actually Functions

Most people have a general sense of how government works: Congress makes the laws, the president enforces them, the courts interpret them. But that picture is missing the part that actually touches your life. The medications in your cabinet were approved by the FDA. The air quality in your city is set by the EPA. Your workplace safety standards come from OSHA. The interest rate on your mortgage is influenced by the Federal Reserve. None of that was decided by Congress — at least not directly.

The reality is that Congress writes broad laws and delegates the details to federal agencies. It has to. Congress is 535 people. The federal government regulates everything from airline safety to food additives to financial markets to nuclear power. The volume, complexity, and technical specificity required to actually govern a country of 330 million people is orders of magnitude beyond what any legislature could handle directly. Agencies exist because the alternative — a Congress that tries to write every rule itself — would be slower, less expert, and less responsive to changing conditions than the system we have.

That doesn't mean the administrative state is perfect. Agencies can be slow, rigid, captured by the industries they regulate, or disconnected from the people they serve. But understanding why the system exists in the first place is essential before evaluating what's wrong with it — and right now, with agencies being restructured, defunded, and challenged in court at an unprecedented pace, understanding the foundation matters more than ever.

This is the first episode of Administrative Remedies, and it lays the groundwork for everything that follows. We explain why Congress delegates, why agencies became the primary way the federal government gets things done, and why administrative law — the body of law that governs how agencies operate — affects your daily life more than almost any other area of law.

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What We Cover

  • Why Congress can't regulate everything itself — the scale, expertise, and speed problems that make delegation necessary
  • How agencies became the primary mechanism for federal governance and why that happened gradually over the twentieth century
  • What administrative law actually is — the body of law that governs how agencies make rules, decide cases, and exercise power
  • The everyday impact: how administrative law shapes the food you eat, the air you breathe, the medications you take, and the financial system you depend on
  • Why understanding the administrative state matters right now, as agencies face unprecedented legal and political challenges
  • The foundation for everything else in this series — delegation, rulemaking, judicial review, and the Supreme Court cases reshaping the system

Full Transcript

Rough S1E1 Transcript — Why We Need the Administrative State

Gwen: Hello, and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I’m Marc Roark. I’m the dean of the College of Law.

Gwen: We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way that the federal government gets things done. And it’s not through Congress for reasons we’ll be addressing over the course of this series.

Gwen: So today we’re starting at the beginning, why we need the administrative state. So let’s say you’re the mayor of a small town. And in that small town, you’re in charge of picking up trash and policing the city, unlocking the town hall for events and driving the town snowplow when it snows and signing all the new ordinances into law and figuring out how to implement them. And oh, by the way, you have to figure out how to run the sewage plant.

Marc: That’s a lot.

Gwen: That’s a lot. It might possibly be doable in a small town. It certainly isn’t going to work in a city like Philadelphia.

Marc: So what exactly is different about Philadelphia?

Gwen: Philly is huge. We’re going to need separate people to handle the streets. The streets department deals with trash and snow removal. We’re going to need police dealing with all the police issues. We have a department of public property handling building access. Water department handles over 3,000 miles of sewage.

Marc: This is a question of scale.

Gwen: So is it just scale? Scale is where we start to care about it. But scale makes another thing possible, and that’s expertise. Once we have to start distributing jobs among different people, that means that different people are focused on one particular area and they get to specialize in that area.

Marc: But this isn’t just about dividing up the work.

Gwen: It’s not. What we want are people who know what they’re doing in each area. If you’re the water department, you’re spending all your time thinking about what we need for clean water, and you’re going to be able to hire other people who are also focused on just what we need for clean water.

Marc: So it’s a difference between having a specialist and a generalist. If I have a common cold, I might go to my general practitioner and have him prescribe certain over-the-counter or prescription drugs that’s going to help me feel better. But if I’m having heart failure, I want to go see a cardiologist.

Gwen: Right. Congress is a generalist. Congress has a lot of different things it cares about, but it doesn’t really know very much about any specific area. Congress basically just doesn’t have the bandwidth or technical capacity to actually address issues. So allowing the specialization is how we translate these broad democratic values like clean air and safe medical devices to something that works in the real world.

Marc: And that’s not a flaw in the system, is it?

Gwen: No, that’s the way it has to work. So when we talk about the administrative state, we’re really talking about the infrastructure of modern governance, the system that lets us take broad democratic values like public health, workplace safety, and clean water, and actually make them real in the day-to-day world by allowing the experts to do what they do best.

Marc: Exactly.

Gwen: So when we think about this, this is governed by a hierarchy. Let’s talk about how hierarchies are created across laws.

Marc: So we have the Constitution, and the Constitution establishes certain powers of the state. It tells Congress what they can regulate. If you look in Article I, Section 8 of the Constitution, Article I says that Congress has the power to regulate interstate commerce. It has the power to regulate taxing and spending, has the power to regulate measurements.

Gwen: And then you have to figure out the next level.

Marc: Right. Which is how do you now operationalize those various powers that Congress is passing laws about?

Gwen: That’s where regulations come in. So we have the Constitution at the top. And then we have those laws that Congress is passing. Those are statutes. If a statute conflicts with the Constitution, the statute loses because the Constitution is supreme. What agencies do is the next level down, and it works the same way. Agencies create regulations. If a regulation conflicts with a statute, the regulation is struck down. And again, if either of them conflict with the Constitution, the Constitution always wins.

Gwen: The Administrative Procedure Act is the big law that governs all agencies. It doesn’t cover what they can do in terms of can they regulate clean air. But it says if they’re going to regulate clean air, this is what they have to do. It’s a statute. It’s passed by Congress, which means that it is supreme over all the actions agencies take. If they do anything in conflict with the APA, what they’ve done is invalid.

Marc: So it’s the rules behind the rules.

Gwen: Yes. That’s what we care about on this podcast.

Marc: So when we talk about the rules behind the rules, then we’re talking about Congress having set certain rules by which agencies that are created from other laws are able to navigate their own power to operate in an area.

Gwen: Yes. This can be a little easier if you see it in concrete action.

Marc: Okay, let’s do that.

Gwen: How would you define milk?

Marc: So I would describe milk as the thing you buy at the grocery store. Comes from a cow, a goat, a sheep, something like that.

Gwen: Yeah, excellent. Let’s see how the FDA defines milk.

Marc: Milk is described as the lacteal secretion practically free from colostrum obtained by the complete milking of one or more healthy cows. Milk that is in final package form for beverage use shall have been pasteurized or ultra-pasteurized and shall contain not less than 8.25% milk solids not fat, and not less than 3.25% milk fat. Milk may have been adjusted by separating part of the milk fat therefrom or by adding thereto cream, concentrated milk, dry whole milk, skim milk, concentrated skim milk, or non-fat dry milk, and milk may be homogenized.

Gwen: In other words, pretty much what you would have said.

Marc: Yeah, it’s exactly what I ask the clerk for every day when I’m looking for the milk.

Gwen: Right. So that’s the way FDA has defined milk in the regulations. Let’s look at the statute that says FDA gets to do that.

Marc: Whenever in the judgment of the Secretary, such action will promote honesty and fair dealing in the interest of consumers, he shall promulgate regulations fixing and establishing for any food under its common or usual name, so far as practicable, a reasonable definition and standard of identity.

Gwen: This was created because when we first started to think about food, The Jungle comes out and identifies horrific conditions. There are also a lot of problems with lots of foods. Milk is expensive. What’s a lot cheaper than milk is watering it down and then adding chalk so it looks white.

Marc: So this is about consumer protection.

Gwen: It is. This entire thing is intended to be consumer protection. We’re trying to figure out what exactly these foods are so people can be confident if they’re buying something that says milk, that it’s actually milk and not chalky water.

Marc: OK, so. But do I need to know these definitions to know that Congress is regulating in this area? Is there something that I can look at a package of food and maybe understand that there is some sort of uniformity in the way that we describe these things?

Gwen: Well, yes, there is. Let’s go to the next one. All right. I’ve given you a couple of the nutritional facts panels. So first, what are those?

Marc: These are the backs of the boxes that tell me how much weight I’m going to gain if I eat the entire box.

Gwen: All right. Excellent. Right now you have Frosted Flakes and Shredded Mini Wheats. So these are both breakfast cereals. But there are some differences. What is the serving size for Frosted Flakes?

Marc: So for Frosted Flakes, it’s one cup or 37 grams.

Gwen: What about for the Frosted Shredded Mini Wheats?

Marc: 25 biscuits or 60 grams.

Gwen: These are considered different types of cereals. Part of the thinking behind the nutritional facts is just like we want everybody to be confident when they go and buy something that’s labeled milk at the grocery store that it’s actually milk. We want people to be able to compare different similar foods and see what the caloric breakdown is, the fat, the calories, the protein, all of those things. And the way you can really do that is by trying to have standardized servings. So we have a different standardized serving for a dense cereal like Frosted Mini Wheats than we do for a medium-weight cereal like Frosted Flakes, or we would for a light cereal like Rice Krispies.

Marc: So the grams tell us a way of scaling the different information we’re going to get in this information that’s being presented.

Gwen: Right. What they’ve tried to do is think, when somebody eats this cereal, what is a typical serving? And those are going to be different for different cereals because people don’t just measure a cup of every cereal that they eat. They do it in different amounts based on how dense the cereal is.

Marc: Right. Most people don’t count out 25 biscuits when they’re putting in their Mini Wheats.

Gwen: Right. That’s approximately what 60 grams works out to. So there are standards saying if you’re selling a dense cereal, you need to list the calories based on approximately 60 grams.

Marc: And when I’m looking at this, the calories are different. So the calories in the Frosted Flakes are 130, but there’s approximately 80 calories more in the Mini Wheats, 210.

Gwen: Right, because there’s a lot more grams in Mini Wheats that you’re eating. This is intended to help you compare similar things and to get an idea of what you’d have. So these serving sizes, the 60 grams, 40 grams, those were increased. The FDA went through and increased a lot of different serving sizes to make it a little more accurate to what people are really eating. So they increased cereal. They also increased the size of an ice cream scoop.

Marc: That still isn’t necessarily a pint.

Gwen: So there’s another rule saying for small containers like that where somebody might eat the entire container, we can put the entire calorie count on that as well. But it’s intended to help you compare things. Some ice creams have a lot more fat. That’s going to be reflected in a lot more calories, but you wouldn’t necessarily scoop out a different amount of that.

Marc: So if we think about what we’re doing here, then the law gives power to the FDA to make the regulations for how you define the food, which gives power to the companies to define how you describe the food to consumers.

Gwen: So the FDA has said how you’re allowed to define these kinds of foods, and it’s up to the companies to figure out, based on that definition, what are the different values for these foods.

Marc: I didn’t realize that Congress was that much in my food.

Gwen: It is in your everything. That’s what we’re talking about.

Gwen: Excellent. Today, we talked about why we need the administrative state. But next time, we’re going to be talking about how the agencies actually get power and why they need to get that power from Congress. That means we’ll be talking about delegation. 


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