Ronald Pestritto’s article on the Trump Administration’s efforts to tame the administrative state helpfully offers what he calls a “brief snapshot,” focusing primarily on the administration’s project to reshape administrative law to buttress presidential control over the bureaucracy through regulatory review and firing authority. His longer Provocation offers an exceptional and more thorough introduction to these and other issues, and I highly recommend it to anyone who wants to understand why the administrative state presents such a fundamental challenge to American constitutionalism.

The core principle that animates Pestritto’s article and Provocation is the consent of the governed—a principle enshrined in the Declaration of Independence as a prerequisite of any just government. According to the Founders, our natural equality means that we cannot be governed by another without our consent. To accept government without consent would be tantamount to admitting that there are rulers who are so naturally superior that they may rule us against our will. Thomas Jefferson famously wrote just before the celebration of the Declaration’s 50th anniversary that “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.”

For Pestritto, the administrative state was deliberately constructed in opposition to the principle of government by consent. The Progressives who served as the “fathers” of the administrative state, most notably Woodrow Wilson and Theodore Roosevelt, argued that expert administrators needed to be empowered to make policy and be shielded from politics and electoral accountability. The rise of government by bureaucracy has established the rule of unelected bureaucrats rather than the rule of and by the people.

I disagree with very little of Pestritto’s essay and Provocation, though we may have different views on two specific matters of practical importance. In the first place, isn’t the Trump Administration expanding parts of the administrative state rather than dismantling it? When one considers the administration’s reliance on executive and administrative authority in the immigration and tariff contexts, one might argue that the disagreement between Trump and modern Progressives is not over whether there is to be an administrative state, but rather what kind of administrative state we should have. While Pestritto does not directly address this question, it is important for the administrative state’s critics to address this question if they wish to avoid the charge of hypocrisy.

Second, in both the essay and the Provocation, Pestritto focuses on the infamous Humphrey’s Executor decision and describes the Supreme Court’s recent signals that Humphrey’s may be on its way out. In that context he also mentions the problem of the Federal Reserve. If Humphrey’s is overturned and the president gains the authority to fire not only the heads of executive departments like the Treasury and State, but also the heads of independent commissions like the Federal Trade Commission, could that lead to the politicization of the Fed? Is there a way to distinguish the Fed from the rest of the bureaucracy?

Pestritto suggests the answer is “no,” but I’m more open to the possibility that the Fed is not part of the executive branch and therefore not subject to the president’s authority. As a historical matter, Aditya Bamzai and Aaron Nielson have recently argued in the Cornell Law Review that the Fed’s monetary policy authority was not created as executive in nature. The original Bank of the United States, established by Congress largely at the behest of Treasury Secretary Alexander Hamilton in 1791, exercised some central banking functions related to monetary policy. But its treasurer was neither appointed nor removed by the president. Even at the Constitutional Convention, language establishing a treasurer appointed by Congress rather than the president persisted until September 14, three days before the Convention concluded its work. Many of the Constitution’s framers and early American statesmen seemed to think that fiscal powers were distinct from other executive powers.

In short, there’s a good deal of historical evidence in support of the idea that agencies exercising authority related to the power of the purse are not part of the executive branch—an idea that could differentiate the Fed’s monetary policy authority from the rest of the administrative state on the matter of the removal power.

Congress on the Hook

Pestritto’s article opens with a rather bleak concession: “It would be far more preferable if we did not have to rely exclusively on the president in the current effort to restore government by consent.” After all, “the people are supposed to rule through their elected Congress,” not through a single elected executive officer. He claims that “no fair-minded observer can plausibly believe that today’s congressmen are likely to take back the vast authority they have given away to agencies and courts.”

Reluctantly, I have to agree. However, I still think it is a mistake to focus primarily on the executive branch as the place where popular consent is expressed. Congress is not entirely absent from the picture, and critics of the administrative state should not give up on it. Instead, they should include proposals for strengthening Congress alongside their proposals for buttressing accountability through the president.

Fortunately, there are good ideas to add to the conversation. The Congressional Review Act, for instance, has increasingly been used to bring major administrative rules and policies to Congress for up-or-down votes. Congress has enacted, and President Trump has signed, at least 21 resolutions to repeal major agency rules addressing important matters involving energy and environmental issues and financial services. These resolutions have prompted Congress to go on record about important policy questions, and thus enable voters to hold them accountable for the policies they enacted.

Other measures would reinforce Congress’s responsibility even further. The “REINS Act,” a law commonly introduced anew at every Congress, would not just allow Congress to vote on major agency rules, but would require Congress to enact those rules into law for them to take effect. In other words, rather than voting to repeal rules already in effect, as the Congressional Review Act authorizes, the REINS Act would require votes in Congress to enact rules in the first place. In recent years Congress has come close to enacting this law—in fact, the House of Representatives passed it in 2023.

In addition to the Congressional Review Act and the REINS Act, it is worth revisiting the Supreme Court’s profoundly important decision in INS v. Chadha from 1983. That decision declared the “legislative veto” to be unconstitutional. In hundreds of statutes before 1983, Congress granted authority to the administrative state but reserved to itself the power to reverse administrative decisions, sometimes by the vote of one rather than both houses of Congress. Major decisions such as the creation of fuel economy standards and federal election rules could be modified by the House or Senate without the president’s signature, or even the concurrence of the other chamber. Congress used these legislative veto provisions to maintain its authority over the administrative state. The death of the legislative veto has, in my view, seriously incapacitated Congress. If the Court were to reassess the constitutionality of the legislative veto, it could lead to a more active and accountable Congress.

While it would be an arduous, long-term project to restore consent of the governed through Congress rather than through the presidency, it would also be a project most in keeping with the Claremont Institute’s mission to “restore the principles of the American Founding to their rightful, preeminent authority in our national life.” Even if the Trump Administration is successful in making the administrative state accountable to the president, that would not be sufficient to restore the Founders’ principles.

The Founders’ Constitution established a republic, not an elected monarchy. Sure, an elected monarchy is better than an unelected bureaucracy, but neither outcome is faithful to the great ideals to which the Institute is dedicated. Thus, while skeptics of the administrative state continue to praise and support efforts to render it more accountable through the elected executive, they should not stop there. They should continue to support efforts to restore consent of the governed by reviving a functional Congress.