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Published online by Cambridge University Press: 11 October 2021
The last decade or so has seen an explosion of scholarship by American law professors on what has become known as administrative constitutionalism. Administrative constitutionalism is a catchphrase for the role of administrative agencies in influencing, creating, and establishing constitutional rules and norms, and governing based on those rules and norms. Though courts traditionally get far more attention in the scholarly literature and the popular imagination, administrative constitutionalism scholars show that administrative agencies have been extremely important participants in American constitutional development. Section I of this essay identifies three different versions of administrative constitutionalism—(1) Engagement with Existing Constitutional Doctrine; (2) Resolving Questions of Statutory Meaning that Implicate Constitutional Questions; and (3) Shadow Administrative Constitutionalism—and provides examples from the scholarly literature to illustrate these distinct manifestations of administrative constitutionalism. Section II of this essay discusses the normative turn in administrative constitutionalism scholarship. Much of this normative literature is implicitly or explicitly premised on the notion that agencies are more likely to pursue progressive goals than are other government actors. Section III of this essay disputes the notion that agency constitutional decision-making is “democratic” and that agencies are naturally inclined to serve progressive goals. Finally, Section IV of this essay notes that scholars who support broad agency autonomy to work out and enforce their own constitutional visions have failed to consider how their work fits in with the economic and political science literature on agency behavior. One can predict, based on that literature, that agencies given broad autonomy under the guise of administrative constitutionalism will primarily be inclined to expand their scope and authority at the expense of countervailing considerations.
Antonin Scalia Law School, George Mason University, [email protected]. The author thanks Jeremy Kessler, Sophia Lee, Karen Tani, an anonymous referee, and the other contributors to this volume for helpful comments.
1 See Bressman, Lisa Schultz and Vandenbergh, Michael P., “Inside the Administrative State: A Critical Look at the Practice of Presidential Control,” Michigan Law Review 105, no. 1 (2006): 47–52 Google Scholar; Peter L. Strauss, “Overseer, or ‘The Decider’? The President in Administrative Law,” George Washington Law Review 75, no. 4 (2007): 704–5.
2 See O’Connell, Anne Joseph, “Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State,” Virginia Law Review 94, no. 4 (2008): 867–71 (showing that agency behavior tends to stay constant despite changes in partisan control of Congress)Google Scholar; David B. Spence, “Managing Delegation Ex Ante: Using Law to Steer Administrative Agencies,” Journal of Legal Studies 28, no. 2 (1999): 445–46 (concluding that Congressional control over agencies is limited).
3 Grisinger, Joanna L., “Municipal Administrative Constitutionalism: The New York City Commission on Human Rights, Foreign Policy, and the First Amendment,” University of Pennsylvania Law Review 167, no. 7 (2019): 1670.Google Scholar
4 Lee, Sophia Z., “Our Administered Constitution: Administrative Constitutionalism from the Founding to the Present,” University of Pennsylvania Law Review 167, no. 7 (2019): 1716.Google Scholar
5 For example, Johnson, Olatunde C. A., “Overreach and Innovation in Equality Regulation,” Duke Law Journal 66, no. 8 (2017): 1773 Google Scholar; Bertrall L. Ross II, “Embracing Administrative Constitutionalism,” Boston University Law Review 95, no. 3 (2015): 519-85.
6 See Lee, Sophia Z., “From the History to the Theory of Administrative Constitutionalism,” in Parrillo, Nicholas R., ed., Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw (New York: Cambridge University Press, 2017): 114–15 (recounting these arguments).Google Scholar
7 Emerson, Blake, “Affirmatively Furthering Equal Protection: Constitutional Meaning in the Administration of Fair Housing,” Buffalo Law Review 65, no. 2 (2017): 169.Google Scholar
8 This may be less a product of the authors’ own priorities, and more a reflection of the fact that law reviews that publish the relevant scholarship are almost all student-run, and the law students who run these law reviews have a bias in article selection toward work with a clear normative perspective, and disfavor purely historical articles.
9 Lee, Sophia Z., “Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present,” Virginia Law Review 96, no. 4 (2010): 891 (defining administrative constitutionalism as “regulatory agencies’ interpretation and implementation of constitutional law”).Google Scholar
10 Metzger, Gillian E., “Administrative Constitutionalism,” Texas Law Review 91, no. 8 (2013): 1901.Google Scholar
11 Lee, Sophia Z., The Workplace Constitution from the New Deal to the New Right (New York: Cambridge University Press, 2014).CrossRefGoogle Scholar
12 Sophia Z. Lee, “Race, Sex, and Rulemaking,” 799. For Lee’s account of how she stumbled on “administrative constitutionalism,” see Lee, “Our Administered Constitution.” Some work that preceded “administrative constitutionalism” emerging as a defined line of research later came to be seen as part of the administrative constitutionalism literature, even though it had not self-consciously been such. For example, Goluboff, Risa L., The Lost Promise of Civil Rights (Cambridge, MA: Harvard University Press, 2007)Google Scholar; Anuj Desai, “Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy,” Stanford Law Review 60, no. 2 (2007): 556–58.
13 Bolling v. Sharpe, 347 U.S. 497 (1954).
14 Ross, Bertrall L. II Embracing Administrative Constitutionalism, Boston University Law Review 95, no. 3 (2015): 522.Google Scholar
15 Ibid. at 529.
16 Ross, Bertrall L. II “Denying Deference: Civil Rights and Judicial Resistance to Administrative Constitutionalism,” University of Chicago Legal Forum 1 (2014): 229 Google Scholar. A somewhat different version of statutory “administrative constitutionalism,” propounded by Professors William Eskridge and John Ferejohn in their book, A Republic of Statutes, is beyond the scope of this essay. Focusing on the importance of influential statutes, they argue that “America enjoys a constitution of statutes supplementing and often supplanting its written Constitution as to the most fundamental features of governance” (William N. Eskridge, Jr. and John Ferejohn, A Republic of Statutes: The New American Constitution [New Haven, CT: Yale University Press, 2010], 11–12). These statutes both serve to fill gaps left by the written Constitution, and influence how other constitutional actors interpret the Constitution. They define administrative constitutionalism as the process through which the norms created by these statutes become an implicit part of the American constitutional system. See also Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (New Haven, CT: Yale University Press, 2012).
17 Tani, Karen M., “Administrative Equal Protection: Federalism, the Fourteenth Amendment, and the Rights of the Poor,” Cornell Law Review 100, no. 4 (2015): 825–99Google Scholar. See also Karen M. Tani, States of Dependency: Welfare, Rights, and American Governance, 1935–1972 (New York: Cambridge University Press, 2016).
18 397 U.S. 254 (1969).
19 Emerson, Blake, “Affirmatively Furthering Equal Protection: Constitutional Meaning in the Administration of Fair Housing,” Buffalo Law Review 65, no. 2 (2017): 163–235.Google Scholar
20 Ibid.
21 Ibid., 165–66.
22 Ibid., 167.
23 Tani, Karen M., “An Administrative Right to Be Free from Sexual Violence? Title IX Enforcement in Historical and Institutional Perspective,” Duke Law Journal 66, no. 8 (2017): 1847–1903.Google ScholarPubMed
24 As explained in Bernstein, David E., “The Abuse of Executive Power: Getting Beyond the Streetlight Effect,” Florida International University Law Review 11, no. 2 (2016): 289–305.Google Scholar
25 Novkov, Julie, “Equality, Process, and Campus Sexual Assault,” Maryland Law Review 75, no. 2 (2016): 607–8.Google Scholar
26 Dalal, Anjali S., “Shadow Administrative Constitutionalism and the Creation of Surveillance Culture,” Michigan State Law Review 59, no. 1 (2014): 61–137.Google Scholar
27 Ibid., 64
28 Ibid.
29 Kauffman, Emma, “Segregation by Citizenship,” Harvard Law Review 132, no. 5 (2019): 1432.Google Scholar
30 Ablavsky, Gregory, “Administrative Constitutionalism in the Northwest Territory,” University of Pennsylvania Law Review 167, no. 7 (2019): 1666.Google Scholar
31 Ibid.
32 Tani, Karen M., “Administrative Constitutionalism at the ‘Borders of Belonging’: Drawing on History to Expand the Archive and Change the Lens,” University of Pennsylvania Law Review 167, no. 7 (2019): 1603–1630.Google Scholar
33 George, Marie-Amélie, “Bureaucratic Agency: Administering the Transformation of LGBT Rights,” Yale Law and Policy Review 36 (2017): 83–154 Google Scholar; Marie-Amélie George, “Agency Nullification: Defying Bans on Gay and Lesbian Foster and Adoptive Parents,” Harvard Civil Rights–Civil Liberties Law Review 51, no. 2 (2016): 363–422.
34 Ibid.
35 Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
36 DeShaney v. Winnebago County Department of Social Services, 812 F.2d 298, 301 (7th Cir. 1987), affirmed, 109 S. Ct. 998 (1989). Progressive frustration with focusing on the Supreme Court and with the Court’s jurisprudence was well-summarized by Barack Obama in a radio interview in 2001:
The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent, as radical as I think people tried to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it’s been interpreted, and [the] Warren Court interpreted in the same way that, generally, the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted.
One of the, I think, the tragedies of the civil rights movement, was because the civil rights movement became so court focused, I think that there was a tendency to lose track of the political and community organizing activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change, and in some ways we still suffer from that.
Quoted in Steve Benen, “Radio Days,” Washington Monthly, October 27, 2008, https://washingtonmonthly.com/2008/10/27/radio-daze. See also Driver, Justin, “The Constitutional Conservatism of the Warren Court,” California Law Review 100 (2012): 1101–1168.Google Scholar
37 Lee, “Our Administered Constitution.” For examples of the “Constitution Outside the Courts” literature, see Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus and Giroux, 2009); Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004).Google Scholar
38 The most prominent academic work in this genre is Hamburger, Philip A., Is Administrative Law Unlawful? (Chicago: University of Chicago Press, 2015).Google Scholar
39 For an example of progressive alarm at these attacks, and a vigorous defense of the administrative state, see Metzger, Gillian E., “The Supreme Court, 2016 Term–Foreword: 1930s Redux: The Administrative State Under Siege,” Harvard Law Review 131, no. 1 (2017): 1–95 Google Scholar. For a rejoinder, see Aaron L. Nielson, “Confessions of an ‘Anti-Administrativist,’” Harvard Law Review Forum 131, no. 1 (2017): 1–12. See also Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900–1940 (New York: Oxford University Press, 2014); Cass R. Sunstein and Adrian Vermeule, “Libertarian Administrative Law,” University of Chicago Law Review 82, no. 2 (2015): 398–400.
40 For example, Auer v. Robbins, 519 U.S. 452 (1997); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Justice Antonin Scalia, a leading conservative Supreme Court Justice, was also a leading advocate of deference to agencies for most of his judicial career. Merrill, Thomas W. and Hickman, Kristin E., “ Chevron’s Domain,” Georgetown Law Journal 89, no. 3 (2001): 867.Google Scholar
41 Jennifer Bachner and Benjamin Ginsberg, What Washington Gets Wrong (New Haven, CT: Yale University Press, 2016), 60: “When agencies that provide such benefits as healthcare and welfare hire employees and secure the services of consultants and contractors, they quite naturally attract individuals who by personal belief and prior training are committed to the organization’s goals.” Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government (Princeton, NJ: Princeton University Press, 2008), 49: “[W]hat motivates many administrators in the first place … is some philosophical commitment to an agency’s regulatory mission.” Ibid. at 93: “[I]t seems plausible that administrators self-select into an employment pool consisting of individuals who share some ideological commitment to a given agency’s mission or, more generally, who believe that regulation can ameliorate difficult social and economic problems …. Over time, then, those who remain with an agency and climb its ranks are those who tend to believe in its mission ….”
42 Bagenstos, Samuel R., “This is What Democracy Looks Like: Title IX and the Legitimacy of the Administrative State,” Michigan Law Review 118, no. 6 (2020)Google Scholar; Gillian E. Metzger, “Administrative Constitutionalism,” Texas Law Review 91, no. 8 (2013): 1897–1935.
43 Lee, “Our Administered Constitution.”
44 Gillian E. Metzger, “Administrative Constitutionalism,” 1897–1935.
45 Ibid., 1901–1902.
46 Ibid., 1902.
47 Bertrall L. Ross II, “Embracing Administrative Constitutionalism,” 519–85.
48 Ibid., 585.
49 Ross, Bertrall L. II “Administrative Constitutionalism as Popular Constitutionalism,” University of Pennsylvania Law Review 167, no. 7 (2019): 1783–1861.Google Scholar
50 Samuel R. Bagenstos, “This is What Democracy Looks Like.”
51 Ibid.
52 Ibid.
53 Ibid.
54 At the federal level, the Supreme Court has noted that “adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies” (Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 [1994] quoting Johnson v. Robinson, 415 U.S. 361, 368 [1974] [internal quotation marks omitted]). The Court added, however, that “[t]his rule is not mandatory” (ibid.).
55 Bagnestos, “This is What Democracy Looks Like.”
56 See Pascoe, Peggy, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York: Oxford University Press, 2009), 205–31.Google Scholar
57 See Zucker, Bat-Ami, In Search of Refuge: Jews and US Consuls in Nazi Germany 1933–1941 (London: Vallentine Mitchell, 2001).Google Scholar
58 Kousser, J. Morgan, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880–1910 (New Haven, CT: Yale University Press, 1974).Google Scholar
59 See Rothstein, Richard, The Color of Law: A Forgotten History of How Our Government Segregated America (New York: Liveright, 2017).Google Scholar
60 Balderrama, Francisco E. and Rodríguez, Raymond, Decade of Betrayal: Mexican Repatriation in the 1930s (Albuquerque: University of New Mexico Press, 1995): 21–22 Google Scholar; Abraham Hoffman, Unwanted Mexican Americans in the Great Depression: Repatriation Pressures, 1929–1939 (Tucson: University of Arizona Press, 1974).
61 Blackhawk, Maggie, “Federal Indian Law as Paradigm within Public Law,” Harvard Law Review 132, no. 6 (2019): 1871.Google Scholar
62 Milligan, Joy, “Subsidizing Segregation,” Virginia Law Review 104, no. 4 (2018): 847–932 Google Scholar; Brown v. Board of Education, 347 U.S. 483 (1954).
63 Milligan, Joy, “ Plessy Preserved” Yale Law Journal 129, no. 4 (2020): 924–1018.Google Scholar
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66 DeMuth, Christopher C. and Ginsburg, Douglas H., “White House Review of Agency Rulemaking,” Harvard Law Review 99, no. 4 (1986): 1081.CrossRefGoogle Scholar
67 Bachner, Jennifer and Ginsberg, Benjamin, What Washington Gets Wrong: The Unelected Officials Who Actually Run the Government and Their Misconceptions about the American People (Amherst, NY: Prometheus Books, 2016), 60 Google Scholar: “[W]hen agencies that provide such benefits as healthcare and welfare hire employees and secure the services of consultants and contractors, they quite naturally attract individuals who by personal belief and prior training are committed to the organization’s goals”; Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government (Princeton, NJ: Princeton University Press, 2008), 49: “[W]hat motivates many administrators in the first place … is some philosophical commitment to the agency’s regulatory mission.” Ibid., at 93: “[I]t seems plausible that administrators self-select into an employment pool consisting of individuals who share some ideological commitment to a given agency’s mission, or more generally, who believe that regulation can ameliorate difficult social and economic problems … Over time, then, those who remain with an agency and climb its ranks are those who tend to believe in its mission.” Steven Kelman, “Occupational Safety and Health Administration,” in James Q. Wilson, ed., The Politics of Regulation (New York: Basic Books, 1980), 236, 250 (concluding that OSHA’s actions are motivated by the “pro-protection values of agency officials, derived from the ideology of the safety and health professionals and the organizational mission of OSHA”).
68 See E. Donald Elliott, “TQM-ing OMB: Or It,” Law and Contemporary Problems 57 (1994): 176 (raising the possibility of political appointees “going native and adopting the characteristic values of their agencies”); Ackerman, Bruce, “The New Separation of Powers,” Harvard Law Review 113, no. 3 (2000): 700–701 CrossRefGoogle Scholar (noting concerns that career civil service employees will “succumb to the pressures of the entrenched ideologues to sustain the preexisting mission of the agency even when it deviates from the administration’s agenda).
69 Niskanen, William A., Bureaucracy and Representative Government (New York: Transaction, 1971): 9, 37–38 Google Scholar; Sam Peltzman, “Toward a More General Theory of Regulation,” Journal of Law and Economics 19, no. 2 (1976): 211–40: George J. Stigler, “The Theory of Economic Regulation,” Bell Journal of Economics and Management Science 2, no. 1 (1971): 3–21; Andre Blais and Stephane Dio, eds., The Budget Maximizing Bureaucrat: Appraisals and Evidence (Pittsburgh, PA: University of Pittsburg Press, 1991).
70 See Stephenson, Matthew, “Statutory Interpretation by Agencies,” in Farber, Daniel A. and Connell, Anne Joseph, eds., Research Handbook on Public Choice and Public Law (Northampton, MA: Edward Elgar, 2010).Google Scholar
71 Kagan, Elena, “Presidential Administration,” Harvard Law Review 114, no. 8 (2001): 2279 (noting that advocates of centralizing regulatory policy in the Reagan Administration argued that such centralization was necessary “to guard against regulatory failures—in particular, excessive regulatory costs imposed by single-mission agencies with ties to special interest groups and congressional committees.”).CrossRefGoogle Scholar
72 For example, in the context of Milligan’s work, while the Department of Education and the Federal Housing Administration could have expanded their authority by insisting that recipients of federal money adhere to nondiscrimination norms, that would have risked upsetting various constituencies these agencies relied upon for political support, which could ultimately have resulted in slashed budgets and other limits on their authority.
73 For example, the Obama Administration’s attempt to use Title IX to micromanage the treatment of sexual assault allegations on college campuses in ways that threatened constitutional rights led to a backlash that gave the Trump Administration the incentive and wherewithal to withdraw the previous administration’s guidance.