The administrative state can teach us about the Constitution’s guarantee of liberty and separation of powers.
Constitutional attacks on the national administrative state are all the rage. Over just this past term and the one before, the Supreme Court has heard constitutional challenges to fundamental features of administrative government such as administrative adjudication, congressional delegation of authority to the executive branch, and judicial deference to agency interpretations. Even more striking, these attacks are finding support with an increasingly conservative and anti-administrative judiciary.
Just this past term, four justices voted to end deference to agency interpretations of their regulations and to hold broad delegations of policymaking authority to the executive branch unconstitutional. As Justice Kagan put it, the latter move, if adopted by a majority of the Court, would mean that “most of Government is unconstitutional.” Meanwhile, political progressives frequently sue the Trump Administration for constitutional rights violations and raise alarms about presidential aggrandizement.
The picture that would seem to emerge from today’s litigated disputes is one of a national administrative state that is fundamentally at odds with the U.S. Constitution and a dire threat to individual liberty. It is all the more important, then, to have a symposium devoted to identifying the important constitutional functions that administrative government has long performed. These functions, which span a range of actions—such as enforcing existing understandings of constitutional rights and developing new ones, or constraining and empowering national government—fall under the broad aegis of administrative constitutionalism. Scholarship on administrative constitutionalism holds several important lessons for contemporary constitutional debates over administrative government.
A first lesson is that the national administrative state is not an early twentieth century perversion of the original constitutional order. As Jerry Mashaw and a growing group of administrative historians demonstrate, national administrative governance goes back to the founding. Indeed, national administration—in forms such as the post office, the land office, the Indian affairs office, customs offices, the Treasury Department, and several more—played critical roles in the early years of the nation. This administrative government was often out of sight, and also more developmental and distributive than regulatory. But regulatory government was present, too, particularly at the state level. As William Novak states in his symposium essay, “national administration and a surprisingly sophisticated structure of administrative law was entrenched in the United States for a century before the so-called invention of modern administration in the Interstate Commerce Act of 1887.” The transformation that occurred at the end of the nineteenth century and the early decades of the twentieth was not the sudden advent of administrative government, but instead a change in the nature of the already existing administrative government from “localized, jurisdictional, and quasi-private rulemaking and office-holding” to “a more centralized, political, and distinctly public vision of administration and administrative law.”
A second lesson that administrative constitutionalism offers is one of the limited role that courts have historically played in developing and enforcing constitutional understandings. As I have argued elsewhere, a core characteristic of contemporary anti-administrativism is its “judicial turn.” Courts are seen as an essential defense against—in Chief Justice Roberts’ words—“hundreds of federal agencies poking into every nook and cranny of daily life,” full of unaccountable “bureaucrats” intent on arrogating power. In Justice Thomas’ telling—and that of Justice Gorsuch—judicial deference to agency statutory (and regulatory) interpretations is a betrayal of the courts’ constitutional duty, enunciated early on in Marbury v. Madison, “to say what the law is.”
But as Sophia Lee and others explain, this understanding of the court’s role is a twentieth-century creation. Direct judicial review of the legality of administrative action was historically exceptional, limited to rare mandamus actions; judicial scrutiny mainly occurred indirectly, through tort actions against an agency official in which statutory authorization was a defense. Lee underscores that judicially imposed constitutional limits on agency action were particularly lacking, as “courts hardly reviewed the constitutionality of agency action at all.”
Indeed, a third lesson from administrative constitutionalism scholarship, and perhaps its most valuable contribution, is its demonstration of how much of the articulation of the Constitution’s meaning has come from administrative actors. Sometimes this articulation concerns the meaning of constitutional structural requirements—such as whether a President can be indicted (to give a current example of high relevance), or the relationship of civil and military authorities in the territories (to give a historical one). Sometimes it involves the meaning of constitutional rights, such as equal protection or the First Amendment. Sometimes it involves both, as in Karen Tani’s account of how welfare administrators used the language of rights to rework the relationship of national and state governments with respect to the administration of welfare programs. As Lee notes, across these varied contexts and despite changes in the scale and scope of administrative constitutionalism, a central point is clear: “Administrative agencies have been the primary interpreters and implementers of the federal Constitution throughout the history of the United States.”
The administrative state’s constitutional role goes beyond developing constitutional understandings and building out governance structures, however. It also performs essential separation of powers functions. For starters, the administrative state is critical for achieving political and legal accountability and constitutionally-required supervision in the exercise of governmental power. In addition, Jon Michaels has described how the multiple internal forces and constraints within the administrative state, such as the combination of career and political officials, serve to replicate and enforce the Constitution’s division of branches and powers.
Just as important is the administrative state’s crucial function in empowering effective governance. Although current attacks on the administrative state’s constitutionality emphasize the framers’ concerns with limiting governmental power, the framers were also intent on empowering the national government and ensuring it had the capacity to govern effectively. The administrative state is essential to achieve effective governance today.
I believe this point can be made still more strongly: Far from being a constitutional aberration, the national administrative state is constitutionally required. Broad delegations of authority to the executive branch necessitate administrative mechanisms to ensure the accountable, constrained, and effective exercise of executive power.
A fourth lesson is that sometimes administrative constitutionalism fails. Recognition of the administrative state’s constitutional benefits needs to be coupled with acknowledgement that there are many instances in which agencies have violated constitutional requirements or failed to give adequate weight to constitutional concerns. Shirin Sinnar, for example, has written about the difficulties in institutionalizing adequate sensitivity to civil rights and individual liberties in national security agencies. David Bernstein argues for skepticism about administrative constitutionalism out of concern that agencies will push constitutional concerns that accord with their missions at the expense of other constitutional rights.
I am more optimistic about administrative constitutionalism in general—and more convinced of the inevitability that administrative agencies will be called upon to implement the Constitution in ways that call for development of constitutional meaning. But recognition of these potential pitfalls carries a fifth and final lesson. The current attacks on the administrative state’s constitutionality are fundamentally misguided not simply because they fail to take account of the administrative state’s constitutional benefits. These attacks also distract political and legal attention from the more urgent constitutional task: learning from the administrative state’s successes and failures about how to improve its constitutional performance going forward.