The attack on the administrative state takes on only half of it—the wrong half.
In many ways, the first month of the second Trump administration has been shocking. The President has quickly and emphatically demonstrated his contempt for the Constitution, for Congress and the courts, and for federal workers and foreign allies alike. But if some of the particulars have come as surprises, the basic outlines of the administration’s plan to decimate the regulatory and service-providing portions of government while consolidating and building executive enforcement capacity were long evident—and long preceded Trump’s presidency.
Shortly after his election, Trump announced that Elon Musk would “pave the way for my Administration to dismantle Government Bureaucracy, slash excess regulations, cut wasteful expenditures, and restructure Federal Agencies.” The America First Policy Institute, the Heritage Foundation, and Project 2025 joined the call for “dismantling the administrative state.” Over the last month, Musk and his acolytes have indeed rampaged through many federal agencies, firing employees and slashing domestic spending and foreign aid. Trump’s own flood of executive orders targets independent agencies and civil servants, among others.
At the same time as it strikes at regulatory agencies, the Trump administration has been arrogating agency resources for a mass deportation plan that Stephen Miller calls “an undertaking every bit as . . . ambitious as building the Panama Canal.” Even as it attempts to purge FBI agents seen as insufficiently loyal, the administration has detailed FBI and DEA officers and U.S. Marshals to interior enforcement work. It has used military planes for removals and the Guantanamo military base for immigration detention, and it is actively “ramping up plans to detain undocumented immigrants at military sites across the United States.” As they look on, the very same actors calling to tame the administrative state argue for expanding U.S. military capacity, increasing the number and authority of ICE officers, and devolving power to law enforcement field offices.
Recent Supreme Court decisions have greased the wheels of this agenda, undermining agency regulation while championing executive enforcement. This past summer, the Court overruled Chevron. It limited the reach of agency adjudication. It eased challenges to agency rules based on cherry-picked comments in the record and allowed suits many years after a rule’s promulgation. The Court has also been developing an appointment and removal doctrine that insists on presidential control, and it has begun to question long-standing principles concerning congressional delegation of authority to agencies. Despite this anti-administrative turn, however, many agencies have grown more powerful, and less constrained, than ever. Law enforcement, corrections, and intelligence agencies’ work has gone untouched by both the Supreme Court’s holdings and political calls to dismantle the administrative state.
This asymmetry is long-standing. Although we talk about “the administrative state,” a closer look reveals two very different faces: one turned toward benefits and regulation, and one turned toward physical force and surveillance. The administrative state’s first face, comprising agencies that engage in regulation and distribute benefits, claims the attention of the administrative law scholars and practitioners. The familiar law that governs agencies like the Environmental Protection Agency, the Department of Health and Human Services, and the Consumer Financial Protection Board expects them to derive authority from legislative delegation, to process information transparently based on expertise, and to exercise power in collaboration with the people. The law governing second-face agencies like ICE, the Defense Department, and the CIA is very different. It allows them to operate without a clear delegation of power, to process knowledge in secret to identify threats, and to exercise control over populations.
Our forthcoming article, “The Administrative State’s Second Face,” seeks to bring new attention to the second face and the law that governs it. This face includes the Defense Department, agencies of the Department of Homeland Security and Department of Justice that engage in law enforcement or carceral work, and the intelligence community. We treat these agencies as a coherent set because personnel, facilities, and material resources circulate among them, they carry out similar activities of law enforcement and execution, and their operations raise related legal questions. Indeed, pooling these agencies’ capacities is the key to the Trump administration’s plan to deport millions of immigrants. Even as excellent scholarship has described and analyzed particular second-face agencies, less attention has been paid to them as an interrelated group.
Attending to the second face reveals that the much-discussed attack on the administrative state is really an attack on only one half of it. Critics challenge broad grants of authority from Congress to administrative agencies and insist on tighter presidential control. They lambast judicial deference to agency statutory interpretation and policymaking. Even defenders of the administrative state propose reforms to reconcile agencies’ work with democratic values; they advocate greater public engagement in notice-and-comment rulemaking, for example, as well as disclosure requirements to facilitate public monitoring.
These arguments about delegation, deference, and democracy concern the administrative state’s first face. But first-face agencies are already quite constrained in relevant respects. It is second-face agencies that enjoy expansive delegations, sweeping judicial deference, and near-complete exemptions from public accountability mechanisms. These agencies act without specific statutory warrant, as claims about presidential authority empower a cadre of low-level agency officials. They receive deference from invocations of plenary power and other permissive frameworks. And they largely set policy without either the front-end engagement provided by notice-and-comment rulemaking or the back-end monitoring envisioned by transparency statutes.
Consider, for example, a basic question of administrative law: how agencies relate to Congress and the president. Courts have insisted that first-face agency activity must be closely tied to both actors. In nondelegation challenges and the subconstitutional realm of major questions and clear statement rules, the judiciary has required specific statutory authorization of agency action. Invoking unitary conceptions of executive power, courts have also increasingly demanded that agencies perform their work subject to presidential control.
For second-face agencies, these concerns about constitutional structure largely disappear. Courts routinely bless exercises of second-face agency power that are not congressionally authorized. And while unitary executive theory has gained force for the first face, courts tend not to inquire into presidential control in the second face. To the contrary, they have invoked presidential authority over national security and law enforcement to empower bureaucratic actors. In Trump v. Hawaii, to pick a prominent example, the Supreme Court cited presidential power over national security to read a provision of the Immigration and Nationality Act as a “comprehensive delegation” to the president. In upholding the proclamation, however, the Court refused to consider the president’s discriminatory statements because the proclamation reflected a multiagency process.
The differential treatment of the administrative state’s first and second faces also extends to deference. The overruling of Chevron was in many ways a watershed moment. But Chevron deference, which applied almost exclusively to rulemaking and adjudication by first-face agencies, was far from the most deferential form of judicial review. In the second face, distinctive doctrines for national security, immigration, and prison administration have provided much more sweeping deference, and these doctrines have been insulated from the current wave of attacks.
The democratic critique of the administrative state likewise targets the first face while leaving the second face largely untouched. For example, a body of recent work has advocated more meaningful public engagement with agency action, especially rulemaking. But precisely because second-face agencies do not set policy through public-facing processes, popular engagement in their work is not only unexpected but often unthinkable. The same is true of transparency laws that seek to provide accountability on the back end. Statutes like the Freedom of Information Act (FOIA) govern, and often impede the work of, first-face agencies while leaving second-face agencies mostly outside their disclosure requirements.
The gap between the administrative state’s first face and second face is growing. As judicial and political actors alike insist on a slimmed-down administrative state under the control of a unitary executive when it comes to the first face, they celebrate a muscular, diffuse second face. Calls to “dismantle” the administrative state don’t touch second-face agencies—other than to shift resources and capacity to them.
We argue in our article that support for the second face is misguided and out of step with the normative commitments of both the administrative state’s conservative critics and liberal defenders. More fundamentally, we hope to direct greater attention to the administrative state’s second face. In the academy, this might prompt new study of enforcement, which has been neglected compared to rulemaking and adjudication. It should also bring legal scholarship into closer conversation with social sciences that theorize government institutions of state violence and racial authoritarianism.
Outside the academy, attending to the second face should destabilize the consensus support it has enjoyed. As the Supreme Court and political actors alike purport to champion checks and balances and popular self-governance, they have been looking in the wrong place. The administrative state’s deepest threat to individual liberty and “control [of government by] the people” comes from its second face.
– Jessica Bulman-Pozen, Emily Chertoff, Published courtesy of Lawfare.
