Administrative Agencies and the Administrative State

Administrative Agencies and the Administrative State

Introduction

Modern government does far more than pass statutes and enforce criminal laws. It regulates financial markets, protects consumers, oversees workplaces, administers social programs, protects the environment, regulates communications, supervises immigration, administers taxes, licenses professionals, and performs countless other functions.

Much of this work is carried out not directly by Congress or the courts, but by administrative agencies.

These agencies are one of the defining features of modern American government. Together, the network of federal departments, agencies, commissions, boards, and other administrative bodies is often described as the administrative state.

The administrative state is therefore not a separate branch of government in the same sense as Congress, the President, or the federal courts. It is better understood as the extensive system through which government statutes are implemented and public programs are administered.

The basic legal question is straightforward:

How can administrative agencies exercise significant governmental power without becoming governments unto themselves?

That question lies at the heart of administrative law.

As the Cornell Law School Legal Information Institute explains in its overview of administrative law, agencies are created and empowered through statutes and are responsible for administering and enforcing the laws enacted by legislatures.

Cornell Wex: Administrative Law

Understanding administrative agencies therefore requires understanding both what agencies do and the constitutional and statutory limits placed upon them.

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1. What Is an Administrative Agency?

An administrative agency is a governmental body that has authority to implement legislation and perform specialized governmental functions.

Congress creates federal agencies through statutes. These statutes, sometimes called organic statutes or enabling statutes, establish the agency and define its legal authority.

An agency may then be authorized to:

• issue regulations;
• interpret and administer statutes;
• investigate violations;
• enforce legal requirements;
• conduct administrative hearings;
• issue licenses or permits;
• collect information;
• inspect regulated entities;
• impose administrative penalties;
• distribute government benefits;
• supervise regulated industries; and
• make other administrative decisions.

Cornell Wex defines an administrative agency as a government body authorized to implement legislative directives by developing more precise and technical rules and, in many cases, exercising enforcement responsibilities.

The important point is that an agency does not possess unlimited governmental authority merely because it is an agency.

Its authority must come from law.

That authority may originate in the Constitution, a federal statute, or a combination of statutory and constitutional authority. An agency cannot simply assume a power because it believes the power would be useful.

This principle can be expressed simply:

Administrative agencies have power because the law gives them power—and they must remain within the boundaries of that power.

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2. Why Does the Administrative State Exist?

The administrative state developed partly because modern government became too complex for legislatures to perform every governmental task themselves.

Congress can enact a statute establishing environmental standards, for example. But Congress generally cannot investigate every factory, determine every technical measurement, inspect every facility, write every technical standard, and resolve every individual dispute arising under the statute.

That work requires:

• specialized knowledge;
• professional staff;
• technical expertise;
• continuing supervision;
• investigation;
• data collection;
• regulatory judgment; and
• administrative machinery.

Administrative agencies provide that machinery.

This creates an important division of governmental labor.

Congress generally establishes the legal framework.

Agencies administer and implement that framework.

Courts resolve legal disputes and review government action when appropriate.

The President and executive officials supervise and execute federal law within the constitutional and statutory structure.

The administrative state therefore reflects a practical reality of modern government: legislation frequently establishes broad programs that require continuing administration.

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3. The Administrative State Is Not a Fourth Branch of Government

One of the most important concepts in administrative law is that the administrative state does not fit neatly into the traditional three-branch model.

The Constitution establishes:

1. the legislative branch;
2. the executive branch; and
3. the judicial branch.

Administrative agencies, however, may perform functions that resemble the work of more than one traditional branch.

An agency may:

• make rules that resemble legislation;
• enforce those rules in ways resembling executive action; and
• conduct adjudicative proceedings that resemble judicial proceedings.

This creates one of the fundamental tensions in administrative law.

Legislative-like function

When an agency creates regulations under delegated statutory authority, it establishes detailed rules governing future conduct.

Those regulations can have legal consequences for businesses and individuals.

Executive function

When an agency investigates violations or enforces federal law, it performs an executive function.

Adjudicative function

When an agency conducts an administrative hearing and determines whether a regulated party violated applicable law, it performs an adjudicative function.

The agency therefore cannot be understood simply as a miniature version of Congress, the President, or a court.

It occupies a specialized institutional position within the broader governmental system.

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4. The Constitutional Problem of Administrative Power

The existence of administrative agencies raises an obvious constitutional question:

Why should government officials who are not members of Congress be allowed to make rules that affect people’s legal rights and obligations?

This question is connected to the constitutional principle of separation of powers.

The Constitution assigns legislative power to Congress, executive power to the President, and judicial power to the federal courts.

Yet modern government requires agencies to exercise substantial regulatory authority.

The constitutional system therefore has to reconcile two competing principles:

Principle One: Government needs administrative capacity

Modern government cannot realistically function if Congress must personally perform every technical and administrative task.

Principle Two: Government power must remain legally controlled

Administrative efficiency cannot justify unlimited governmental discretion.

The constitutional structure therefore permits administrative agencies to exercise significant authority while subjecting that authority to legal constraints.

Those constraints include:

• statutory limits;
• constitutional rights;
• procedural requirements;
• judicial review;
• presidential supervision where applicable;
• congressional oversight;
• requirements of reasoned decision-making; and
• limitations on delegated authority.

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5. Delegation: How Agencies Receive Their Power

Administrative agencies generally do not receive their authority directly from the Constitution in the same way Congress receives legislative power.

Instead, Congress commonly delegates authority to agencies through statutes.

Suppose Congress passes a statute directing a federal agency to regulate a particular industry.

The statute might establish broad objectives and authorize the agency to adopt regulations necessary to implement those objectives.

The agency’s authority therefore depends upon the statute.

This creates a legal chain:

Constitution → Congress → Statute → Agency Authority → Agency Action

The agency is downstream from Congress.

That does not mean Congress can give an agency unlimited power.

The delegation must remain constitutionally permissible, and the agency must stay within the authority Congress actually granted.

This is why the nondelegation doctrine, statutory interpretation, and judicial review are central subjects in administrative law.

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6. Organic or Enabling Statutes

The statute that creates or authorizes an agency is commonly referred to as its organic statute or enabling legislation.

This statute can determine:

• what the agency is allowed to regulate;
• which people or industries fall within its jurisdiction;
• what enforcement powers it possesses;
• what procedures it must follow;
• what remedies it may impose;
• what rules it may issue; and
• what limitations apply to its authority.

For example, Congress may create an agency to regulate a particular economic sector and give it authority to issue regulations necessary to implement specified statutory objectives.

The agency does not acquire a general governmental mandate merely because Congress created it.

Its authority remains connected to its statutory mission.

This is why lawyers frequently begin an administrative-law dispute by asking:

What statute gives the agency this particular power?

That question can determine the entire case.

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7. Executive Agencies

Many federal agencies operate within the executive branch.

Examples include departments and agencies headed by officials who ultimately operate under presidential authority within the constitutional and statutory framework.

Executive agencies commonly perform functions such as:

• administering federal programs;
• enforcing federal statutes;
• issuing regulations;
• conducting investigations;
• managing government benefits;
• overseeing regulated activities; and
• implementing presidential and congressional policy within their lawful authority.

The President therefore plays an important role in administrative government.

However, presidential authority is itself constrained by statutes and the Constitution.

An executive agency cannot necessarily do whatever the President wishes if Congress has established statutory limitations.

Administrative law therefore involves an interaction between presidential control, congressional authorization, agency discretion, and judicial review.

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8. Independent Agencies

Some federal agencies are structured to have a degree of independence from direct presidential control.

Examples traditionally include agencies such as:

• the Federal Trade Commission;
• the Securities and Exchange Commission; and
• other independent commissions created by Congress.

Independent agencies often have structures designed to provide some insulation from immediate presidential direction.

For example, Congress may establish:

• multimember commissions;
• fixed terms of office;
• limitations concerning removal;
• bipartisan membership requirements; or
• other institutional arrangements.

The precise constitutional status of these arrangements is a matter of doctrine and can depend upon the particular agency and statutory structure.

The distinction between executive and independent agencies is therefore important, but it should not be treated as an absolute division between agencies that are “controlled” and agencies that are “uncontrolled.”

All federal agencies remain subject to law.

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9. Agencies Can Exercise Multiple Types of Power

Administrative agencies can perform several different governmental functions.

The most important are rulemaking, adjudication, and enforcement.

Rulemaking

Rulemaking involves creating generally applicable rules.

For example, an agency might establish technical requirements for a regulated industry.

Administrative regulations can fill in statutory details and establish requirements necessary to administer a federal program.

The Administrative Procedure Act provides a major federal framework governing agency rulemaking.

Adjudication

Agencies may also resolve disputes.

An agency might determine whether a regulated entity violated a federal requirement or whether an applicant qualifies for a government benefit.

Some administrative adjudications can involve formal procedures, evidence, hearings, and decisions by administrative law judges.

Enforcement

Agencies may investigate suspected violations and enforce statutory or regulatory requirements.

Depending on the governing statute, enforcement mechanisms can include:

• administrative orders;
• civil penalties;
• license suspension;
• license revocation;
• compliance directives;
• administrative litigation; or
• referral to another governmental authority.

These functions explain why administrative agencies can have substantial practical influence over people’s lives.

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10. Rulemaking: Agencies as Regulators

Rulemaking is one of the most visible functions of the administrative state.

Congress may enact a statute using broad language because technical details cannot reasonably be anticipated in legislation.

The agency then develops regulations addressing those details.

For example:

Congress: establishes a statutory requirement.

Agency: determines technical standards necessary to implement it.

Regulated parties: must comply with valid regulations.

Courts: may review the agency’s action when properly challenged.

This structure allows legislation to remain adaptable.

But it also creates a potential democratic problem.

Agency officials are generally not elected members of Congress.

Why, then, should their regulations have legal force?

The answer lies partly in delegated authority and procedural safeguards.

Agencies do not ordinarily possess an inherent power to legislate. Their rulemaking authority must be grounded in law.

And where the APA’s notice-and-comment requirements apply, affected members of the public ordinarily have an opportunity to participate in the regulatory process.

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11. Adjudication: Agencies as Decision Makers

Administrative agencies can also function as decision-making bodies.

Consider a hypothetical professional licensing agency.

A statute may authorize the agency to license professionals and discipline licensees for specified violations.

If a professional is accused of misconduct, the agency may conduct an administrative proceeding.

Depending upon the governing law, the process may involve:

1. notice of the alleged violation;
2. an opportunity to respond;
3. presentation of evidence;
4. a hearing;
5. findings of fact;
6. legal conclusions;
7. an administrative decision; and
8. possible judicial review.

This resembles a judicial proceeding, but it is not necessarily equivalent to a proceeding in an Article III federal court.

The distinction matters because administrative adjudication is subject to its own statutory, constitutional, and procedural rules.

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12. Administrative Enforcement

Agencies also enforce the laws they administer.

Enforcement can take many forms.

An agency may:

• investigate conduct;
• request documents;
• conduct inspections;
• issue subpoenas where authorized;
• initiate administrative proceedings;
• issue compliance orders;
• impose authorized civil penalties; or
• seek judicial enforcement.

The precise enforcement powers of an agency depend upon its enabling statute and other applicable law.

An agency cannot create an enforcement power simply because it believes enforcement would further its mission.

Again, the fundamental question is:

Where does the agency get this power?

That question is one of the recurring themes of administrative law.

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13. The Administrative State and Expertise

One of the strongest arguments for the administrative state is expertise.

Modern regulation frequently involves subjects that require technical knowledge.

Examples include:

• financial markets;
• aviation safety;
• pharmaceuticals;
• environmental science;
• telecommunications;
• nuclear safety;
• workplace safety;
• public health;
• energy systems; and
• complex economic regulation.

Congress contains lawmakers with different backgrounds and responsibilities.

An administrative agency, by contrast, can employ scientists, economists, engineers, lawyers, accountants, investigators, and other specialists.

This specialization allows agencies to develop technical knowledge over time.

But expertise creates another constitutional and democratic tension.

Expertise can improve decision-making, but expertise does not itself create legal authority.

An agency may know more about a technical subject than a court.

That does not mean the agency has the final word on every legal question.

This distinction has become especially important after the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo.

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14. The Administrative State After Chevron

For decades, Chevron deference played a major role in administrative law.

Under the Chevron framework, courts sometimes deferred to reasonable agency interpretations of ambiguous statutes administered by those agencies.

That approach changed dramatically in 2024.

In Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the Supreme Court overruled Chevron.

The Court held that courts must exercise their own independent judgment when interpreting statutes and cannot defer to an agency interpretation merely because the statute is ambiguous.

This does not mean that administrative agencies suddenly became powerless.

Agencies continue to possess statutory authority to:

• administer federal programs;
• promulgate authorized regulations;
• exercise delegated discretion;
• gather information;
• enforce laws; and
• make factual and policy judgments within their lawful authority.

But the relationship between agency expertise and judicial authority has changed.

Courts now have a stronger role in determining the meaning of governing statutes.

The modern administrative state therefore operates in an environment where agency authority must be carefully connected to statutory text and constitutional limits.

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15. The Administrative State and the Rule of Law

The rule of law requires government officials to exercise power according to law rather than personal preference.

This principle is particularly important for administrative agencies because agencies make decisions affecting ordinary people and businesses on a continuing basis.

A functioning administrative state therefore requires:

Legal authority

The agency must possess lawful authority to act.

Procedural regularity

The agency must follow applicable procedures.

Rational decision-making

The agency must provide a legally adequate explanation for important decisions.

Consistency

Similarly situated parties should generally be treated according to coherent legal standards.

Accountability

Government officials must remain subject to mechanisms of oversight and review.

Judicial review

Courts must remain capable of determining whether agency action exceeds legal limits.

The administrative state therefore presents a paradox:

The government needs substantial administrative power to function, but the legitimacy of that power depends upon keeping it within legal boundaries.

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16. Agencies and Democratic Accountability

Another major criticism of the administrative state concerns democratic accountability.

Members of Congress are elected.

The President is elected nationally.

Federal judges are appointed through a constitutional process and receive life tenure.

Many administrative officials, however, are career civil servants or appointed officials who are not directly elected by the public.

This raises an important question:

How democratic can administrative government be?

Several mechanisms help address that concern.

Congressional oversight

Congress can investigate agencies, conduct hearings, amend statutes, control appropriations, and impose statutory limits.

Presidential oversight

The President and executive officials can supervise many executive agencies.

Judicial review

Courts can review agency action for legality and constitutional compliance.

Public participation

Rulemaking procedures can allow members of the public, businesses, organizations, and other interested parties to submit comments.

Transparency

Federal administrative procedures and publication requirements can make agency actions more visible to the public.

No single mechanism completely resolves the democratic-accountability problem.

Together, however, they create a system of checks on administrative power.

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17. The Administrative State and Individual Rights

Administrative government frequently affects fundamental interests.

An agency decision can affect:

• employment;
• professional licenses;
• business operations;
• government benefits;
• property;
• immigration status;
• environmental obligations;
• financial liability; and
• access to government programs.

Administrative law therefore cannot be reduced to technical government procedure.

It is also about individual liberty and legal rights.

Where government action threatens protected interests, constitutional due process may impose procedural or substantive limitations.

The precise requirements depend upon the nature of the governmental action and the interests involved.

The broader principle is straightforward:

Administrative efficiency does not eliminate constitutional rights.

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18. The Administrative State and Businesses

Businesses interact with administrative agencies constantly.

A business may need to:

• obtain a license;
• comply with workplace rules;
• satisfy environmental requirements;
• follow securities regulations;
• meet consumer-protection standards;
• submit regulatory reports;
• respond to an investigation;
• challenge an administrative order; or
• defend itself in an administrative proceeding.

For businesses, administrative law is therefore often practical rather than theoretical.

The question is not simply whether a regulation exists.

The important questions may include:

• Did the agency have authority to issue it?
• Did the agency follow the required procedure?
• Does the regulation conflict with the governing statute?
• Is the agency’s interpretation legally correct?
• Did the agency adequately explain its decision?
• Is the agency’s action arbitrary or capricious?
• Is judicial review available?
• What remedies exist?

Administrative law provides the framework for answering those questions.

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19. The Administrative State and Judicial Review

The courts play a critical role in maintaining the legal boundaries of administrative government.

Judicial review allows courts to examine agency action in appropriate cases.

The Administrative Procedure Act provides an important statutory framework for federal judicial review.

Among other things, the APA directs courts to determine relevant questions of law and provides standards for reviewing certain agency actions. The Supreme Court emphasized in Loper Bright that courts must independently interpret governing statutes while ensuring that agencies remain within the boundaries of delegated authority.

Judicial review therefore performs a constitutional and legal function:

Agencies administer the law.
Courts determine whether agency action remains within the law.

That division is central to the modern administrative state.

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20. Why the Administrative State Is Controversial

The administrative state has generated persistent constitutional and political debate.

Supporters argue that agencies are necessary because:

• modern government is technically complex;
• Congress cannot administer every program itself;
• specialized expertise improves regulation;
• continuing administration is necessary;
• agencies can respond more quickly than legislatures; and
• regulatory systems require specialized institutions.

Critics argue that agencies may:

• exercise too much power;
• combine legislative, executive, and adjudicative functions;
• become insufficiently accountable to voters;
• impose excessive regulatory burdens;
• expand beyond congressional authorization; or
• interfere with individual liberty and private enterprise.

Neither perspective should be ignored.

Administrative law exists partly because both concerns are legitimate.

A government without administrative capacity may be incapable of carrying out modern legislation.

A government with uncontrolled administrative power may undermine the very legal and constitutional principles that legitimize government authority.

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21. The Administrative State as a System of Controlled Power

The best way to understand the administrative state is not simply as a collection of government agencies.

It is a system for organizing delegated governmental power.

That system contains several interacting elements:

Congress

Creates agencies and establishes statutory authority.

↓

Administrative Agencies

Implement statutes, issue authorized regulations, enforce laws, and adjudicate certain disputes.

↓

President and Executive Officials

Supervise and direct executive administration within constitutional and statutory limits.

↓

Courts

Review agency action and determine questions of law.

↓

Public and Regulated Parties

Participate in administrative processes and challenge unlawful government action where legal requirements for review are satisfied.

The result is not perfect separation.

Instead, administrative government operates through a complicated network of delegation, implementation, oversight, participation, and judicial review.

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22. A Simple Example

Imagine Congress passes a federal statute designed to reduce dangerous pollution.

The statute establishes broad environmental requirements and authorizes a federal agency to administer the program.

The agency might then:

1. conduct scientific research;
2. propose technical regulations;
3. receive public comments;
4. issue final regulations;
5. inspect regulated facilities;
6. investigate suspected violations;
7. issue enforcement orders;
8. conduct administrative proceedings; and
9. defend its actions in court if challenged.

The agency is therefore doing much more than simply “enforcing a law.”

It is administering an entire regulatory program.

But every stage remains legally constrained.

The agency must have statutory authority.

Its regulations must comply with governing law.

Its procedures must satisfy applicable requirements.

Its enforcement actions must be authorized.

And its decisions may be subject to judicial review.

This illustrates the central idea of administrative law:

The administrative state converts legislative policy into continuing governmental administration, but it must do so within legal boundaries.

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23. Administrative Agencies vs. Courts

Administrative agencies and courts can both make decisions, but their institutional roles differ.

Administrative Agencies	Courts
Created primarily by statute	Created under constitutional or statutory authority
Administer government programs	Resolve legal disputes
Exercise delegated administrative authority	Exercise judicial power
Often possess technical expertise	Primarily decide legal disputes
May issue regulations	Generally do not create executive regulations
May conduct administrative adjudications	Conduct judicial proceedings
Enforce statutes within authorized jurisdiction	Review legality and resolve judicial controversies
Subject to statutory and constitutional limits	Bound by the Constitution and applicable law

The distinction is particularly important because agencies do not become courts simply because they conduct hearings.

Likewise, courts do not become administrative agencies merely because they review agency decisions.

Each institution occupies a different place within the legal system.

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24. Administrative Agencies vs. Congress

Congress creates statutes.

Agencies administer them.

This distinction is not absolute because Congress may delegate authority that allows agencies to create detailed regulations.

But the basic institutional difference remains important.

Congress determines the legislative framework.

An agency operates within the authority Congress has lawfully delegated.

After Loper Bright, courts independently interpret the statutes that define that authority rather than automatically accepting an agency’s interpretation of statutory ambiguity.

This makes careful statutory interpretation increasingly important in administrative law.

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25. Administrative Agencies vs. Private Organizations

An administrative agency is not simply another organization that happens to regulate people.

It exercises public governmental authority.

A private professional association may establish membership rules.

A federal agency may have statutory authority to impose legally binding regulatory requirements.

A private company may discipline its employees according to an employment contract.

A government agency may impose legally authorized sanctions.

The difference is the source of authority.

Administrative power ultimately rests upon public law.

That is why administrative action is subject to constitutional and statutory constraints that ordinary private decisions generally are not.

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26. The Central Legal Question: Who Has Authority?

Almost every major administrative-law problem eventually returns to a basic question:

Who has the legal authority to make this decision?

The answer may require examining:

1. the Constitution;
2. the agency’s enabling statute;
3. other federal statutes;
4. the Administrative Procedure Act;
5. agency regulations;
6. judicial precedent; and
7. constitutional limitations.

This hierarchy matters because agencies are not independent sources of sovereign power.

They are governmental institutions operating through legally conferred authority.

The administrative state is therefore best understood through the concept of bounded power.

An agency can be powerful without being unlimited.

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27. Key Principles to Remember

Several principles summarize the relationship between administrative agencies and the administrative state.

1. Agencies are creatures of law

They exist and exercise authority because legal rules authorize them to do so.

2. Congress plays a central role

Congress creates federal agencies and establishes their statutory mandates.

3. Agencies can perform multiple functions

They may engage in rulemaking, adjudication, investigation, enforcement, licensing, and administration.

4. Administrative power is delegated power

Agencies generally exercise authority that Congress has lawfully assigned to them.

5. Delegation has limits

An agency cannot exceed the authority granted by statute or the Constitution.

6. The APA is fundamental

The Administrative Procedure Act establishes major procedural rules governing federal administrative action.

7. Expertise does not equal legal supremacy

An agency may possess specialized knowledge without having the final authority to interpret every governing statute.

8. Courts remain important

Judicial review provides a mechanism for enforcing legal limits on administrative action.

9. The administrative state creates both benefits and risks

It can make modern government workable while also creating concerns about accountability, delegation, discretion, and individual liberty.

10. The central objective is controlled governmental power

The legitimacy of administrative government depends upon combining effective administration with meaningful legal constraints.

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Frequently Asked Questions

What is the administrative state?

The administrative state is the system of government agencies and administrative institutions that implement, administer, and enforce legislation and operate government programs.

Is the administrative state a fourth branch of government?

Not formally. The Constitution recognizes three branches of the federal government. Administrative agencies operate within those constitutional structures and may perform different types of governmental functions.

Who creates administrative agencies?

Federal administrative agencies are generally created by Congress through statutes.

What powers do administrative agencies have?

Depending on their enabling statutes, agencies may have authority to issue regulations, conduct investigations, enforce laws, conduct administrative adjudications, issue licenses, administer programs, and perform other governmental functions.

Can an administrative agency make law?

Agencies can issue regulations that have legal force when authorized by statute and promulgated according to applicable legal requirements. They do not possess unlimited legislative power.

Are administrative agencies part of the executive branch?

Many agencies are part of the executive branch, but some federal agencies are structured as independent agencies. The precise legal relationship between an agency and the President depends upon the agency’s statutory and constitutional structure.

Can courts overrule administrative agencies?

Courts can set aside unlawful agency action when the requirements for judicial review are satisfied. Courts may determine whether an agency acted within its statutory authority, followed required procedures, and complied with constitutional requirements.

Does agency expertise control statutory interpretation?

No. After Loper Bright Enterprises v. Raimondo, courts must independently interpret statutes rather than automatically defer to agencies simply because a statute is ambiguous.

Why is the administrative state controversial?

The administrative state is controversial because it combines substantial governmental expertise and capacity with difficult questions about delegation, democratic accountability, separation of powers, individual liberty, and judicial control.

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Conclusion

Administrative agencies are among the most important institutions in modern American government.

They transform statutes into functioning governmental programs. They develop technical regulations, administer public programs, investigate violations, enforce legal requirements, conduct administrative proceedings, and make countless decisions that affect individuals and businesses.

That power is necessary for modern government to function.

But necessity does not mean unlimited authority.

Administrative agencies remain creatures of law. Their powers must come from lawful sources, their actions must remain within statutory and constitutional boundaries, and their procedures must comply with applicable requirements. Courts remain available in appropriate cases to review whether agencies have stayed within those boundaries.

The administrative state therefore presents one of the central problems of modern constitutional government:

How can government possess enough administrative power to govern effectively while retaining enough legal restraint to remain a government of laws rather than a government of unchecked discretion?

Administrative law is, in large part, the law that attempts to answer that question.

The modern answer is neither to eliminate administrative government nor to allow agencies unlimited discretion.

It is to build a system in which delegated power is exercised effectively, expertise is used responsibly, procedures are respected, government remains accountable, and legal authority ultimately remains subject to law.