Administrative Processes

3. Factors That Make Conflict Intractable

This introductory article was written by ChatGPT at the direction of Heidi Burgess, who reviewed, edited, and approved the final content.
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The executive branch is supposed to carry out the laws, not make them on its own. Under the Constitution, the president must "take Care that the Laws be faithfully executed," a duty explained in the Library of Congress's overview of the Take Care Clause. Congress writes laws and appropriates money; the courts interpret laws and decide whether government action is lawful; and the executive branch implements the laws through departments and agencies. As USA.gov's explanation of the three branches summarizes, this separation of powers is meant to prevent any one branch from controlling the entire governing process.

Administrative agencies are the working machinery of the executive branch. Agencies such as the Department of Health and Human Services, the Environmental Protection Agency, the Department of Homeland Security, the Department of Education, and many others translate broad statutes into practical programs, rules, permits, enforcement actions, grants, inspections, guidance documents, and services. Because Congress cannot write detailed instructions for every technical problem, agencies are often given discretion to fill in the details. The Administrative Procedure Act is one of the main safeguards governing this process. It requires agencies, in many situations, to publish proposed rules, allow public comment, explain their reasoning, and make final rules public before they take effect.

Administrative processes become controversial when presidents or agencies appear to stretch their authority beyond what Congress authorized. Executive orders are a central example. The Federal Register explains that presidents use executive orders to manage the operations of the executive branch, and the American Bar Association describes them as signed, written, published directives from the president. These orders can be legitimate tools for setting priorities and directing agencies. But they become legitimacy problems when they seem to create new law, contradict statutes passed by Congress, evade appropriations limits, or reverse major policy commitments without the level of deliberation that legislation requires. In such cases, critics may see executive action as a way of governing by decree, rather than through democratic lawmaking.

Another legitimacy concern arises when agency leadership appears to be based more on loyalty, ideology, or political usefulness than on competence and public trust. The Constitution gives the president broad appointment power, but many high-level officials must be confirmed by the Senate under the Appointments Clause. That process is supposed to provide both political accountability and a check on unqualified or unsuitable nominees. Still, it does not guarantee public confidence. For example, Robert F. Kennedy Jr. was confirmed and sworn in as Secretary of Health and Human Services in 2025, with HHS announcing him as its 26th secretary, while the Associated Press described the confirmation as placing a prominent vaccine skeptic in charge of major federal health programs. Supporters may see such appointments as democratic change and a challenge to entrenched bureaucracies. Critics may see them as politicizing agencies that depend on scientific, technical, or professional expertise.

There are legitimate concerns on both sides of the administrative-process debate. It is reasonable to worry about an unelected bureaucracy that makes important decisions with limited public visibility. It is also reasonable to worry about presidents who pressure agencies to ignore evidence, disregard statutory limits, punish political enemies, or dismantle programs that Congress has required by law. Some attacks on the "administrative state" exaggerate the problem by treating all regulation or expert administration as illegitimate. But some defenses of agencies also go too far by implying that technical expertise should be insulated from democratic control. Constructive conflict handling requires a balance: agencies need enough expertise and independence to implement law competently, while presidents, Congress, courts, inspectors general, the press, and the public need enough oversight to ensure that administrative power remains lawful, transparent, accountable, and trustworthy.

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This page was created by ChatGPT in response to this prompt. It was then reviewed, edited, supplemented and approved by Heidi Burgess. More information about how and why we are using AI in this way, and about the growing number of ways in which Beyond Intractability is using ChatGPT, Claude and other AI systems to generate content and build out the BI system, is available on our BI/AI Overview Page