The Devil, the Details, and the Dawn of the 21st-Century Administrative State: Beyond the New Deal

More than half a century has passed since the New Deal, the era known for ushering in the modern administrative state, where broad-sweeping regulatory powers were delegated to over a dozen new executive agencies pursuant to a raft of social legislation. Until the later years of the New Deal, courts were highly suspicious of socially progressive legislation, and, for that matter, any legislation that upset common law systems supporting private property rights and freedom of contract. Regulatory enactments were especially vulnerable to invalidation for delegating policy-making authority to an executive agency or other non-legislative entity. Such delegations were considered a constitutional offense under the nondelegation principle of separation of powers.