Law Day 2022—Toward a More Perfect Union: The Constitution in Times of Change Lesson Plan—High School

The Administrative State and the Constitution

This lesson uses an organizational chart of the federal government to discuss what the administrative state within the federal government is and does, compares “lawmaking” and “rulemaking” processes, and introduces academic debates surrounding the administrative state and the Constitution.

Grade Level: High School

Time Needed: 90-120 minutes

Session Objectives:

Explore the administrative state and how it fits within the structure of American government;
Differentiate the legislative and rulemaking processes and understand how each contribute to law in the United States;
Interrogate the questions around the administrative state and separation of powers, Congressional power, and its relationship to the U.S. Constitution; and
Identify examples of work that the administrative state performs and how it fits into American government and society.

Materials Needed:

Part 1: What is the “administrative state?”

Ask students to look at the Chart of the Government of the United States, and discuss what they see:

What is organized in this chart?
What is at the top? Middle? Bottom?
Have you heard of any of the offices, departments, or agencies listed on the chart?

Help students to orient top-down and left-right on the chart: the U.S. Constitution is at the top—it is the supreme law of the land; a row of three branches of government, legislative, executive, and judicial, and entities within each; fifteen executive departments that comprise the President’s Cabinet; and additional agencies within the executive branch of the government.

Ask students to consider the executive departments and agencies on the chart:

What do you think the fifteen executive departments do?
Can you think of any government agencies that you’ve heard about that might be related to the fifteen executive offices in the chart?
How are the agencies positioned on the chart? What branch of government do they connect to?
How does the executive branch on the chart compare to the other branches?

The executive departments work to execute the laws of the United States on behalf of the executive branch. They do this through executive agencies, offices, committees, regulatory boards, and other bodies. Encourage students to think about executive departments and agencies that they know from news, including the regulatory bodies associated with them. Examples are available here: https://www.usa.gov/branches-of-government. Encourage students to make observations about what they list, including the “alphabet soup” of the federal government, specialized focus of each department, and regulatory nature of each agency. Ultimately, students should understand that the executive branch is large, complex, with more entities connected to it on the chart compared to the legislative and judicial branches of government.

Part 2: Lawmaking and Rulemaking

Still considering the Chart of the Government of the United States, ask students what they remember about how laws are made within the three branches of government.

Encourage students to mention any of the steps that they might recall about “how a bill becomes a law,” from starting in Congress, to signature of the President, to veto, override, and publication.

Share with students the infographic of How a Bill Becomes a Law, and review the lawmaking process with them.

Encourage students to discuss any checks and balances they remember from the lawmaking process, as well, including how the President must sign the bill once past Congress, or the President may veto a bill, or the Supreme Court may strike down a law as unconstitutional.

Explain to students that the work that the executive departments and the agencies within them do is often called “rulemaking,” and it is different, but related to, from “lawmaking.” Share with them the infographic of the Federal Rulemaking Process, and review the rulemaking process with them.

Focus attention on the introductory text on the infographic about the relationship between Congressional legislation and the rulemaking process. Point out all steps of the rulemaking process, especially the “public” aspects, including public comment periods and publication.

Part 3: Charting the Processes

Offer each student a T-chart and ask them to work with a partner to complete the chart using the two process infographics as references.

The T-chart allows students to see processes side by side. Allow about 15 minutes for chart completion, then discuss as a group.

Discuss the processes with students:

Have you seen this processes before?
How are the processes similar? Different?
Why do you think that the rulemaking process has “public” components to it? Why are these important?
Does the lawmaking process include any public components?
Why might the rulemaking process be necessary, alongside the lawmaking process? What are benefits of the process compared to the lawmaking process?

Encourage students to identify similarities and differences between the two processes and consider the public-facing pieces of both processes. Encourage students to think about potential benefits of the rulemaking process, including efficiency, speed, nuance or specificity, professional expertise, use of existing government resources and protocols to implement new procedures.

Explain to students that this system, while having many benefits, also inspires criticisms. Can they think of any criticisms?

Depending on the group, students might generate ideas of criticisms, including that the system is unwieldy, expensive, vulnerable to corruption and inefficiencies (ideas of “the deep state”), rulemakers are not elected officials, rules do not follow the legislative process as outlined in the Constitution.

Part 4: Should the administrative state be smaller?

Explain to students that they’ll use a structured academic controversy model to consider the size of the current administrative state and its role in our country and government.

Depending on the group, students and teachers may be familiar with this discussion model. Plot timing for this activity with the teacher in advance, as it may take significant time, like a class period. Discussion readings might be assigned in advance of the activity.

Modified and adapted countless times by researchers and teachers, the technique has five basic steps:

Organize students into four-person teams comprised of two dyads—one dyad assigned the “yes” position to the question, and the other dyad assigned to the “no” position. Distribute discussion handouts (1& 2) and readings to all students.
Each dyad reviews materials, which represent different positions on the question. Students complete Handout 2 to track their analysis and prepare their positions.
Dyads then come together as a four-person team and present their views to one other, one dyad acting as the presenters, the others as the listeners.
Rather than refuting the other position, the listening dyad repeats back to the presenters what they understood. Listeners do not become presenters until the original presenters are fully satisfied that they have been heard and understood.
After the sides switch, the dyads abandon their original assignments and work toward reaching consensus. If consensus proves unattainable, the team clarifies where their differences lie.

Debrief

This wrap-up is meant to distill broad observations about the administrative state from students, and may be used after Part 3 or Part 4, depending on which parts of the lesson are used.

Let students know that the lesson is wrapping up, and you’re discussing the “big takeaways.” Ask students to discuss the following questions:

What is something that you’ve learned that the administrative state does, and how does that work involve law, or affect American society?
How does the work of the administrative state relate to what we know about separations of power in the U.S. Constitution?
Do you think the administrative state’s power is constitutional?

Do you have any other “hot takes” about the administrative state that you’d like to share?