Gary Lawson's Critique of the Unconstitutional Post-New-Deal American Administrative State

In "The Rise and Rise of the Administrative State," Gary Lawson argues that the contemporary judicial interpretation of the Constitution's Interstate Commerce Clause is unjustifiably broad. Regulation of interstate commerce does not imply regulation of all activities affecting or affected by commerce. According to Lawson, "the Commerce Clause clearly leaves outside the national government's jurisdiction such important matters as manufacturing (which is an activity distinct from commerce), the terms, formation, and execution of contracts that cover subjects other than the interstate shipment of goods, and commerce within a state's boundaries." The progressives, in their attempt to expand government regulatory power, did not act within the bounds already allowed to government by the Constitution but rather exceeded those bounds by interpreting constitutional provisions with unwarranted breadth.

Lawson argues that the post-New-Deal administrative state which the progressives created is unconstitutional and that the progressives accomplished a "bloodless constitutional revolution" in instituting the administrative state. First, the administrative state undermines limited, constitutional government; today, the U.S. Congress exercises general legislative powers in contravention of the constitutional principle of limited powers; Congress often delegates these general legislative powers to administrative agencies in violation of Article I; these agencies are often independent of Presidential control in violation of Article II; they furthermore often exercise the judicial power in contravention of Article III. The "necessary and proper" clause has been construed as giving the government unenumerated powers provided that they somehow make the exercise of the enumerated powers more effective.