A Look at States’ Roles in Administrative Constitutionalism

“Administrative constitutionalism” may appear to be an oxymoron. Yet, state and federal administrative agencies—so-called “fourth branches of government”—interact daily with constitutional doctrines. Most administrative constitutionalism scholarship focuses on federal agencies, but are scholars, lawyers, and public officials ignoring state administrative constitutionalism?

Administrative constitutionalism refers to agencies’ interactions with state constitutions and the U.S. Constitution when they engage in rulemaking, adjudication, and law implementation. But in a recent paper, Katherine Shaw, Associate Professor of Law at Benjamin N. Cardozo School of Law, argues that existing legal scholarship focuses almost exclusively on federal agencies, leaving state agencies as underappreciated players in the elaboration of constitutional meaning. Shaw asserts that examining state agencies’ interactions with constitutional principles may shed new light on state agency decision-making.

State administrative agencies’ core functions do not differ significantly from those of their federal counterparts. Like federal agencies, state agencies have the power to issue regulations and adjudicate matters in myriad policy areas, such as social security, health care, and the environment.

In addition, state administrative agencies regularly interpret state constitutions and the U.S. Constitution in their daily work, such as when they analyze due process questions when administering benefits or interpret First Amendment principles in regulating campaign finance.

For example, Shaw recounts how state regulatory bodies have grappled with the scope of permissible campaign finance regulation after the U.S. Supreme Court’s Citizens United v. FEC decision, where the Court held that independent political expenditures by corporations and unions are protected speech. The decision further paved the way for later court decisions authorizing Super PACs—independent committees permitted to raise and spend unlimited sums of money from corporations, unions, associations, and individuals to advocate for or against political candidates.

Following the mold of administrative constitutionalism at the federal level, state agencies weighed in on the campaign finance issue. In Minnesota, for instance, the Minnesota Campaign Finance and Public Disclosure Board issued an advisory opinion in 2014 prohibiting candidates from fundraising for Super PACs and appearing at Super PAC events. Although the Minnesota Board concluded that its coordination prohibition survived constitutional scrutiny, it cited neither the First Amendment nor any provision of the Minnesota Constitution. Nor did the opinion reference any state or federal constitutional case law.

Conversely, Michigan’s Department of State issued an advisory opinion concluding that state and local candidates and officeholders in Michigan may attend Super PAC events and solicit unlimited contributions to independent Super PACs. Yet, like the Minnesota opinion, Michigan avoided any direct constitutional interpretation, instead looking to statutory law for guidance.

Shaw contends that, although these state agencies’ constitutional analyses may be absent or largely underdeveloped, these pronouncements often represent the final word on applied constitutional meaning and consequently warrant more attention.

Moreover, state agencies diverge in certain respects from their federal counterparts concerning the relationships among state agencies, state legislatures, and state courts. This state-federal divergence, Shaw argues, impacts the various features of constitutionalism in individual states and state agencies and may affect how state agencies directly impact the lives of their constituents.

For example, Shaw points out that federal courts have not used the federal nondelegation doctrine—the principle that Congress cannot cede its legislative power to federal agencies—to invalidate federal agency action since the 1930s. Congress need only articulate an “intelligible principle” in its statutes, and federal agencies have ample room to issue rules and adjudicate.

In contrast, because state legislatures and executive branches typically lack meaningful control over state agencies, many state courts have stepped in to impose substantive limits on state legislatures’ delegations of their legislative powers. Since the work of state agencies is more subject to invalidation on nondelegation grounds, Shaw suggests state agencies may have limited room for constitutional interpretive autonomy and thus may be less inclined than federal agencies might be to issue rules and adjudicate.

Furthermore, in terms of direct engagement with constitutional questions, most state constitutions neither affirmatively prohibit nor allow agencies to implement and reject state statutes on constitutional grounds. Yet, some state laws speak directly to state agencies’ powers to interpret the U.S. Constitution or state constitutions, or both.

California, for instance, prohibits its agencies from declaring that state statutes are unconstitutional or preempted by federal law. Meanwhile, Nebraska’s statutory scheme allows its agencies to choose whether or not to implement statutes based on constitutional objections.

Accordingly, Shaw posits that the variation in the degree of constitutional autonomy across states presents fertile ground for exploration of the dynamics of administrative constitutionalism.

Shaw stresses that she is not making any broad claims about the political and social implications of state administrative constitutionalism, but that she believes more study of state administrative constitutionalism is needed as both a theoretical and practical matter.