The Volokh Conspiracy
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The 2025 Edwin Meese III Originalism Lecture: "Originalism, the Administrative State, and the Clash of Political Theories" by Joel Alicea
One of the greatest honors of my career has been receiving the inaugural 2022 Edwin Meese III Originalism Award. My lecture was titled Originalism and Stare Decisis in the Lower Courts. The winners in 2023 and 2024, respectively, were Professors Kurt Lash and John Yoo. I am pleased that the 2025 winner was Professor Joel Alicea at Catholic University. Joel was recently appointed as the St. Robert Bellarmine Professor of Law. He is also the Director of the Center for the Constitution and the Catholic Intellectual Tradition.
Joel's lecture was titled Originalism, the Administrative State, and the Clash of Political Theories. It is well worth a watch and a listen.
This segment of his conclusion is especially thought-provoking:
Originalism's politico-theoretical premises, then, are hostile to the premises undergirding the administrative state and living constitutionalism. The concentration of lawmaking power into the hands of the federal legislature, the delegation of that lawmaking power from Congress to administrative agencies, and the insulation of administrative power from presidential and judicial accountability are not just violations of our fundamental positive law—which would be a contingent conflict that could be obviated by amendments to our Constitution. The conflict runs much deeper, to differing conceptions of the human person and of politics. As Wilson recognized, a political theory that elevates a Founding-era conception of our Constitution will always be in conflict with the political theory of living constitutionalism and administrative power.
And that is why the stakes of the Trump administration's ambitious efforts to dismantle the administrative state are so high. This isn't just a matter of clashing interpretations of the scope of administrative authority under our law; it is a clash of opposing political theories.
That is not to say, of course, that originalist judges do or should decide cases by applying political theory to the facts of a case. I strongly oppose such freewheeling normative reasoning by judges in deciding cases. But it is to say that, in applying originalist methods to resolving cases according to law, originalist judges are relying on a constitutional theory whose implicit normative premises are hostile to the political theory of the administrative state, so it should not surprise us that originalism will often stand opposed to the administrative state.
It required two progressive presidents of extraordinary determination and political skill—Woodrow Wilson and FDR—to create the administrative state and impose a progressive constitutional and political theory on our structure of government. It stands to reason that it will require another president of extraordinary determination and political skill to undo what his predecessors accomplished.
Whether President Trump's efforts will succeed remains to be seen. If they do, he will rank alongside FDR as a president of transformative significance for American government. There is no doubt that, both as a matter of political theory and constitutional theory, much depends on the outcome of the contest the President has undertaken. Thank you.
As I left Heritage, I asked a colleague if President Trump will be more transformational than President Reagan. That sort of question may have once been considered heretical in Heritage, but the answer was a pretty clear "yes." I think I agree. And Joel's excellent speech begins to lay the analytical framework to understand Trump's transformation.
