Administrative State: Who Makes Rules, Trump or Congress?

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CONSTITUTIONAL SHOWDOWN · AMBITION AGAINST AMBITION · PART 2 OF 2
Reading the text as written and testing every claim of power against it, so believers can practice faithful, clear-eyed citizenship.

Congress and the President are about to fight over power. But many binding rules you live under come from the administrative state, written by officials nobody elected.

Linda bakes the best sourdough in Mechanicsville. She finally opens her own shop. Before she sells her first loaf, she learns the rules. How her labels must read. How her workers’ overtime is figured. Which forms she must file, and when.

Some of those requirements are written into laws passed by Congress. Many more details are filled in by federal agencies, under authority Congress gave them. The people who write those rules are officials Linda never voted for and couldn’t name. Yet binding rules can carry real penalties. If she breaks one, she can be fined.

So Linda asks a fair question. Who voted on this?

Hold onto two words: law and rule. A law passes both houses of Congress and, in most cases, is signed by the President. A rule is written by an agency under a law. The gap between those two words is one of the biggest constitutional questions both branches have left unsettled.

We want to hear from you. If we got a fact wrong, tell us in the comments. If you see it differently, tell us that too.

How Many Agencies Are There? It Depends Who Is Counting

In Part 1, we looked at the collision coming on January 3, when the new congressional term begins. According to news projections, the other party will control both chambers. Subpoenas, privilege, and impeachment are the battlegrounds.

But a third player sits on the field. It is the vast set of federal agencies, departments, bureaus, boards, and commissions. People call it the “alphabet soup,” or the administrative state.

How big is it? There is no single official count. The Administrative Conference of the United States advises the government on how its agencies work. Its 2018 Sourcebook explains that there is no authoritative list, because legal definitions and counting methods differ. Different government directories count different things, so their totals differ widely.

Federalist 62 saw the danger long ago. It warned of laws “so voluminous that they cannot be read, or so incoherent that they cannot be understood.” A free people should at least be able to count the bodies that write their rules.

Where Law Is Supposed to Come From

Article I opens plainly: “All legislative Powers herein granted shall be vested in a Congress of the United States.” The lawmaking powers the Constitution grants to the federal government belong to Congress.

John Locke, whose work was widely read in the founding generation, made the same point in his Second Treatise of Government: “The legislative cannot transfer the power of making laws to any other hands.” The people loan that power to their lawmakers. Lawmakers can’t pass it on.

So the legal question is how much decision-making Congress may leave to others. Lawyers call it the nondelegation question. Under today’s case law, Congress may not hand off its lawmaking power. But it may let agencies carry out laws under standards Congress supplies.

The Constitution guards the money, too. Article I, Section 9 says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” In plain English, federal spending must be authorized by law. Congress makes the law. Congress controls the purse. Those are the two pillars.

Three Powers Under One Roof

Now look at what parts of the administrative state can do. Some agencies write binding rules. They enforce those rules. And they decide certain disputes before their own in-house judges. Writing, enforcing, and deciding can sit under one roof.

Madison warned about this in Federalist 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.” Notice the words “a few.” Madison didn’t only fear a king. He feared any small group that gathered all three powers.

Critics say agencies come too close to that line. Defenders answer that agencies are bound by statutes, procedures, and review by federal courts. Madison himself allowed some overlap between the branches, as long as each could check the others. The question is whether today’s checks are strong enough.

Scripture explains why checks matter at all. “For the LORD is our judge; the LORD is our lawgiver; the LORD is our king; he will save us” (Isaiah 33:22). God alone holds all authority without sin. Human rulers do not. “The heart is deceitful above all things, and desperately sick; who can understand it?” (Jeremiah 17:9). No official, elected or appointed, is beyond the need for restraint. Federalist 51 makes a related point: “If men were angels, no government would be necessary.”

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How the Administrative State Grew

Congress has handed off much of this decision-making, a little at a time.

In 1928, in J.W. Hampton v. United States, the Court said Congress could authorize executive action if it supplied an “intelligible principle” to guide it. That test proved easy to pass. The Court has struck down delegations under it in only two cases, both in 1935, and both involved the same New Deal law.

A major recent test came in 2025. In FCC v. Consumers’ Research, the Court upheld the Universal Service Fund system, 6–3. Congress set the program’s framework, but not the contribution rate. A private administrator supplies estimates, and the FCC has final say over the rate. Phone companies may pass the charge on to customers. Justice Neil Gorsuch dissented, joined by Justices Thomas and Alito.

The money has drifted, too. The Consumer Financial Protection Bureau doesn’t get a yearly budget vote. It draws funding from the Federal Reserve, up to a limit Congress wrote into law. In CFPB v. Community Financial Services Association (2024), the Court upheld that setup, 7–2. Critics argue permanent funding weakens Congress’s regular oversight. The majority answered that Congress may authorize ongoing funding and can change it by law.

The Court Pushes Back on the Administrative State

Lately, though, the Court has started pushing back:

West Virginia v. EPA (2022): When an agency claims power over a question of great economic and political weight, it must point to clear permission from Congress.
SEC v. Jarkesy (2024): When the SEC seeks civil penalties for securities fraud, the accused is entitled to a jury trial.
Loper Bright Enterprises v. Raimondo (2024): Courts must decide legal questions for themselves. They may weigh an agency’s reasoning, but a vague law no longer requires them to accept it. The Court overruled its 1984 Chevron decision.

So who should rein the agencies in? Here is where the two branches split.

The Strongest Case for the President

The President’s defenders say the answer is obvious. If the administrative state wields executive power, the elected executive must control it. Voters chose the President. They didn’t choose the agency heads.

The Supreme Court largely agreed this June. In Trump v. Slaughter, it ruled 6–3 that the President may remove Federal Trade Commission members at will. It overruled Humphrey’s Executor, the 1935 case that had shielded such officials. The same day, in Trump v. Cook, the Court upheld the Federal Reserve governors’ protection and voted 5–4 to keep Governor Cook in place while her case continues. We covered the removal fight in Who the President Can Fire.

The constitutional argument is broader than any one President. It is about putting an elected official, one voters can remove, back in charge of the bureaucracy. Hamilton argued in Federalist 70 that a single executive makes responsibility easier to trace. Divided authority makes blame harder to assign.

Scripture commends faithful delegation, too. Moses was worn out judging every case himself. His father-in-law Jethro told him to choose “able men from all the people, men who fear God, who are trustworthy and hate a bribe” to handle the smaller matters (Exodus 18:21). Then came the key line: “Every great matter they shall bring to you” (Exodus 18:22). That isn’t a blueprint for the American presidency. But the principle holds. Sharing the work isn’t wrong. Losing track of who answers for it is.

The Strongest Case for Congress

Congress’s defenders say controlling the agencies isn’t the same as fixing them. If an agency writes something that works like a law, putting the President in charge doesn’t make it a law. It just moves the pen from one unelected desk to a branch that was never given lawmaking power.

Congress can narrow agency power and funding by law. Courts can enforce the limits already on the books. But any new law must survive the President’s veto. Starting January 3, Congress’s strongest tool is the purse. It can write limits into the spending bills the government needs.

The Impoundment Control Act of 1974 generally bars a President from withholding funds simply because he disagrees with Congress’s policy. It allows certain delays, and it lets him ask Congress to cancel funds. We covered one fight over that law in our piece on the pocket rescission.

Congress has a second tool, but it is weaker than it looks. Under the Congressional Review Act, within set deadlines, Congress can overturn an agency rule by a simple majority in each chamber. But the President must sign that resolution. If he vetoes it, overriding takes two-thirds of both chambers. So a veto can block the repeal unless Congress has a two-thirds majority.

So Congress’s defenders say the real fix is the hard one. Write clear laws. Vote on the big rules yourself. Put more agency funding up for regular, public votes.

The Third Way: Both Branches Let It Grow

Here is the honest truth. Neither branch has clean hands.

Handing off decisions can let lawmakers avoid hard details or shift the blame. Defenders say agencies supply expertise Congress lacks. Presidents, meanwhile, can press agencies to advance disputed goals. And broad delegations remain central to the federal government, despite reform proposals that come up again and again.

Defenders of the present system make a fair case. Congress sets policy. Agencies supply expertise. Presidents supervise. Courts enforce the limits. The question is whether that system still works as designed.

Israel was warned long ago about trusting too much in human rulers. When the people demanded a king like the nations, Samuel told them what that king would do. “He will take the tenth of your grain and of your vineyards and give it to his officers and to his servants” (1 Samuel 8:15). The warning wasn’t about one bad king. It was about misplaced trust in human power, and the burdens it brings.

The Third Way answer is not “the President wins” or “Congress wins.” It is “the Constitution wins.” Congress writes the laws and decides the spending, in public, by vote. The President runs the agencies and answers for them. And the courts hold both to the lines.

Starting January 3, the stage is set. The President now holds firmer control of many agencies, thanks to the Slaughter ruling. A Congress run by the other party holds the purse. That is the collision. The question isn’t only which branch wins. It is whether either one will put lawmaking back where Article I put it.

What the Citizen Does

Law or Rule? Keep This

When a new federal requirement lands on your business, your church, or your family, ask:

Who voted on it? A law passed both houses of Congress, usually with the President’s signature. A rule was written by an agency under a law.
Did Congress say so clearly? On questions of great economic and political weight, an agency needs clear words from Congress (West Virginia v. EPA).
Who pays for it? Is the agency funded by a regular vote of Congress, or by a stream Congress doesn’t revisit?

Read it yourself: Article I · Federalist 47 · Loper Bright

Make one two-minute call. Call your representative’s office and say: “I’m a constituent. Will Rep. [name] vote to require Congress to approve major agency rules before they take effect?” The REINS Act, which would do that, passed the House in 2017 and 2023. Neither version became law.

Pray for wise rulers. “When the righteous increase, the people rejoice, but when the wicked rule, the people groan” (Proverbs 29:2). Pray for the President and the new Congress by name. Pray that both will choose the hard, open vote over the easy hand-off.

Keep learning. Our earlier piece, God First, Constitution Always, looks at the agencies from a different angle.

No act of Congress and no executive order can make a nation honest. Only the Spirit of God changes the heart. But the God who gave Moses able men who hated a bribe can still raise up public servants who fear Him more than they love power. Pray for them. Then hold them to the text.

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