Module 1: The Administrative State & Agency Structure

Agencies bring specialized technical expertise and dedicated ongoing capacity to complex, fast-changing regulatory areas that a general legislature, with limited time and no permanent technical staff, generally can’t provide on its own.

The modern administrative state traces to a specific, concrete failure Congress couldn’t solve through ordinary legislation: the Interstate Commerce Commission (ICC), created in 1887, is generally recognized as the first modern independent federal regulatory agency. Congress had tried directly legislating against discriminatory railroad shipping rates for years, but railroads operated across so many routes and rate structures, changing constantly, that a fixed statute was obsolete almost as soon as it passed. The ICC gave Congress a dedicated, ongoing body that could investigate specific rates, adjust its own rules as conditions changed, and build real technical expertise in an industry no general legislature could realistically monitor rate-by-rate — the same basic justification driving every regulatory agency created since.

Example. Congress could never itself keep pace with evaluating every new chemical compound’s safety or every securities disclosure’s accuracy — a dedicated agency staffed with scientists, economists, and specialists can.

Agencies routinely exercise a blend of legislative-like power (rulemaking), executive-like power (enforcement), and judicial-like power (adjudication) within a single institution — a genuine tension with the traditional three-branch separation of powers.

Justice Jackson gave this tension its most quoted judicial description in his dissent in FTC v. Ruberoid Co., 343 U.S. 470 (1952), warning that the administrative agencies had become “a veritable fourth branch of the Government, which has deranged our three-branch legal theories” — bodies that investigate, prosecute, and then judge the very violations they themselves charged, a concentration of functions the Framers had deliberately split across three separate branches specifically to prevent. Jackson’s phrase stuck precisely because it named a real structural anxiety that has never fully gone away: due process and separation-of-powers doctrine have developed real safeguards around it (internal separation between an agency’s investigating and adjudicating staff, administrative law judges with real independence, judicial review of agency adjudications), but the underlying blend of functions within one institution remains a defining, debated feature of the administrative state rather than something later reform fully resolved.

Example. The same agency might write a binding safety rule (legislative-like), investigate and charge a company for violating it (executive-like), and then hold a hearing deciding whether the violation actually occurred (judicial-like) — all within one institution.

An executive agency is generally headed by an official removable at the President’s will. An independent regulatory agency is generally headed by a multi-member commission whose members serve staggered terms and are protected from at-will removal.

The default rule for purely executive officials was settled well before independent commissions existed as a recognized category. In Myers v. United States, 272 U.S. 52 (1926), the Supreme Court held that the President has an essentially unrestricted constitutional power to remove a purely executive officer — there, a postmaster Congress had tried to protect from removal without the Senate’s consent — reasoning that the President’s constitutional duty to “take Care that the Laws be faithfully executed” requires the ability to control the officials actually executing them. Myers is the reason executive agencies default to at-will removal today, and it is also the baseline that made Humphrey’s Executor, decided less than a decade later, genuinely surprising — that case had to explain why a different category of official, one exercising quasi-legislative and quasi-judicial functions rather than purely executive ones, could be treated differently from the postmaster in Myers.

Example. A cabinet department head generally serves at the President’s pleasure; a commissioner on a multi-member independent regulatory commission generally cannot be removed except for cause specified in the enabling statute.

Humphrey’s Executor (1935) upheld for-cause removal protection for a multi-member independent commission’s members. Seila Law v. CFPB (2020) struck down that same kind of protection for a single director heading an agency with substantial executive power. Then, in Trump v. Slaughter (June 29, 2026, 6-3), the Court overruled Humphrey’s Executor itself: the President may remove at will the principal officers of an agency wielding substantial executive power, whether the agency has one head or many.

Humphrey’s Executor v. United States, 295 U.S. 602 (1935), arose when President Franklin Roosevelt tried to remove FTC Commissioner William Humphrey purely because of policy disagreements — Humphrey had no misconduct issue, Roosevelt simply wanted a commission more aligned with New Deal policy. The Supreme Court held the removal invalid, reasoning that Congress could constitutionally insulate a multi-member commission exercising quasi-legislative and quasi-judicial functions from purely political removal, distinguishing Myers’ purely executive postmaster. That holding stood, increasingly narrowed, for 85 years until Seila Law LLC v. CFPB, 591 U.S. 197 (2020), where the Court confronted a genuinely different structure: the Consumer Financial Protection Bureau, created by the 2010 Dodd-Frank Act, was headed by a single director with substantial executive enforcement power, not a multi-member commission. The Court struck down the director’s for-cause removal protection, reasoning that concentrating that much unaccountable executive power in one individual, insulated from removal, posed a sharper threat to presidential accountability than Humphrey’s Executor’s multi-member commission model ever did — expressly declining to extend Humphrey’s Executor beyond its original multi-member context rather than overruling it outright. Six years later,Trump v. Slaughter (2026), involving a President’s removal of an FTC commissioner, finished the job: the Court held that Article II vests the executive power in the President, that the FTC Act’s for-cause limit is unconstitutional, and that Humphrey’s Executor is overruled. The Court left open offices traditionally outside the executive branch, and in Trump v. Cook has so far preserved the Federal Reserve’s independence.

Example. Before 2026, the same for-cause removal language might have been constitutional for a five-member commission but not for a single director heading an agency with comparable power — the distinction this module’s sandbox once turned on. AfterSlaughter, the head count no longer saves the restriction for an agency wielding substantial executive power.

An agency’s enabling statute creates it and defines its jurisdiction, mission, and powers. Recalling the Legislature course’s nondelegation coverage, the statute must supply an intelligible principle — a specified policy and boundaries — rather than open-ended, standardless lawmaking power.

The intelligible principle test itself traces to J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928), where the Supreme Court upheld a tariff statute authorizing the President to adjust import duties to equalize production costs between domestic and foreign goods. Chief Justice Taft’s opinion coined the phrase still used today: a delegation is constitutional “if Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” What makes this test genuinely notable in practice is how permissively courts have applied it ever since — the Supreme Court has struck down a delegation on nondelegation grounds only twice in its entire history, both in 1935, and has upheld even quite broad or vague-sounding statutory language against nondelegation challenges in nearly every case since. That permissive real-world track record is worth knowing alongside the test’s formal wording, since it shapes how much practical weight the intelligible principle requirement actually carries in most enabling statute litigation today.

Example. An enabling statute authorizing an agency to set “ambient air quality standards requisite to protect the public health” supplies a real, if general, policy and boundary; one authorizing the agency to “regulate however it deems appropriate” sits much closer to the standardless end of the spectrum.

The U.K. has non-departmental public bodies (NDPBs) and regulators with some operational independence from direct ministerial control, functionally close to U.S. independent agencies — but accountability runs primarily through ministerial responsibility to Parliament, reflecting the U.K.’s different constitutional structure rather than U.S.-style removal-power litigation.

NDPBs are colloquially, and often pejoratively, called quangos (quasi- autonomous non-governmental organizations) in U.K. political discourse — a term that itself captures a real, ongoing tension in British administrative law: these bodies are simultaneously described as operating at arm’s length from government, while still being funded by it, staffed with government appointees, and ultimately answerable to a minister who sits in Parliament. Unlike the U.S., where parliamentary sovereignty has no equivalent and judicial review of removal decisions plays a central accountability role, the U.K.’s constitutional structure gives Parliament itself the final word — a minister can be questioned, censured, or ultimately forced to resign over a regulator’s conduct, but a court challenging the underlying removal or structural-independence question the way Humphrey’s Executor, Seila Law or Slaughter did in the U.S. has no real analogue, since there is no separate constitutional branch for such independence to be litigated against in the first place.

Example. Criticism of a U.K. regulator’s controversial decision is more likely to be raised through parliamentary questioning of the responsible minister than through a lawsuit over the regulator’s chief executive’s removal.

The Administrative Procedure Act (APA), enacted in 1946, sets the general procedural framework — for rulemaking, adjudication, and judicial review — that applies across virtually all federal agencies, making it the common backbone the rest of this course builds on.

The APA emerged from a real, decade-long political fight over the New Deal’s explosive growth of federal agencies. As agencies multiplied through the 1930s, each with its own ad hoc procedures, critics — including many in the organized bar — argued that unchecked agency power, combining rulemaking, enforcement, and adjudication with little uniform procedure or judicial oversight, posed a real threat to due process. The Attorney General’s Committee on Administrative Procedure studied the problem for years and issued an influential 1941 report recommending a uniform statutory framework; the actual legislation stalled through World War II before finally passing in 1946 as a hard-won compromise between agencies wanting flexibility and reformers wanting real procedural constraints. That compromise is exactly why the APA reads the way it does today — general enough to apply across wildly different agencies and subject matters, but specific enough to impose real, judicially enforceable procedural minimums (notice-and-comment rulemaking, formal adjudication procedures, and the judicial review standards) rather than leaving each agency to invent its own process from scratch.

Example. Two entirely different agencies regulating entirely different industries both generally follow the same basic APA rulemaking procedure when adopting a new binding rule — exactly the cross-cutting framework the next module explores in depth.