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“ADMINISTRATIVE CONSTITUTIONALISM”: CONSIDERING THE ROLE OF AGENCY DECISION-MAKING IN AMERICAN CONSTITUTIONAL DEVELOPMENT
Published online by Cambridge University Press: 11 October 2021
Abstract
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.
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- © 2021 Social Philosophy & Policy Foundation. Printed in the USA
Footnotes
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Antonin Scalia Law School, George Mason University, dbernste@gmu.edu. The author thanks Jeremy Kessler, Sophia Lee, Karen Tani, an anonymous referee, and the other contributors to this volume for helpful comments.
References
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18 397 U.S. 254 (1969).
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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.
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46 Ibid., 1902.
47 Bertrall L. Ross II, “Embracing Administrative Constitutionalism,” 519–85.
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51 Ibid.
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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.).
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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.