Regulation and Public Policy:

A large set of regulatory powers in the modern administrative state affect the vitality of the rule of law. Rule of law scholars always have been concerned about the exercise of government power, but increasingly that power is wielded by administrators. That fact raises concerns over the relation of executive officials to the chief executive – in America, the relation of administrators to the President. While some commentary worries about the scope of executive power, it is equally important to ask what effective controls exist to reign in the power of unelected administrators. In the fields of communications, securities, and financial services, for example, the principal decisions respecting the operation of the industry are taken by administrative officials. Often, those decisions are taken with only the vaguest legislative direction. Often, those decisions are implemented in ways that enhance administrators’ discretion. And often, too, the substantive decisions move us away from policies that promote economic efficiency and individual liberty.