HOW PETITIONING GAVE RISE TO
THE MODERN ADMINISTRATIVE STATE on research by
M AG G I E M C K I N L E Y Assistant Professor of Law
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The American administrative state, comprised of agencies like the Environmental Protection Agency, the Food and Drug Administration, and the Department of Veterans Affairs, has long been under siege. From the highest levels of government — including the White House — to scholars, commentators increasingly question the legality of its position outside the traditionally-understood three branches of government: executive, legislative, and judicial. In an article in the Yale Law Journal, “Petitioning and the Making of the Administrative State,” University of Pennsylvania Law School professor Maggie McKinley uncovers the previously unexplored origins of the modern administrative state in the history of Congressional petitioning from the Founding through the mid-twentieth century. McKinley’s work offers scholars, policymakers, and the courts an opportunity to rethink the position of the administrative state within our constitutional framework. Administrative agencies are a defining feature of the modern United States government, engaging in regulation and enforcement that affects countless facets of American life. The history of petitioning “reveals an administrative state that was established, at least in part, to protect individual rights and to maintain equal liberty by affording individuals and minorities a mechanism for meaningful participation in the making of law,” McKinley writes. As such, it “offers a counternarrative to the libertarian vision of the administrative state as a rightsinvading, and even unconstitutional, construction.”
