What is and Should Be the Role of Administrative Agencies in Developing Constitutional Rules and Norms?

"Administrative Constitutionalism" is receiving a great deal of attention in legal academia, and some misguided praise.

|The Volokh Conspiracy |

I have a new article posted for download. The article addresses the boooming literature on "administrative constitutionalism," i.e., the role of administrative agencies in influencing, creating, and establishing constitutional rules and norms, and
governing based on those rules and norms.

Here is an execerpt:

Progressives such as Metzger, Ross, and Bagenstos seem drawn to broad versions of administrative constitutionalism to evade what some would argue is the inherent conservatism of the American constitutional system. Yet history does not support the assumption that administrative constitutionalism inherently promotes progressive values. This article has already discussed several examples where administrative flexibility in applying "constitutional principles," particularly with regard to race and ethnicity, has led to illiberal policy.

Recall this article's definition of shadow administrative constitutionalism-—"a process of agency-norm entrepreneurship and entrenchment that occurs without public consultation, deliberation, and accountability." Other examples of illiberalism being the outcome of this sort of administrative constitutionalism are easy to come by. Consider, for example, local government administrators who vigorously enforced their states' anti-miscegenation laws, including making their own innovations regarding who was covered by such laws and how their race could be ascertained. Or consider the bureaucrats who put various procedural and other obstacles in the way of Jewish refugees seeking to flee Nazi-occupied areas in the late 1930s, ensuring that even meager immigration quotes would not be filled. Or consider southern voting registrars who took pains to limit or prevent African-American voter registration in the South, or zoning officials and road planners who tried to ensure that segregated housing patterns would be entrenched. Or consider the federal immigration officials who expelled tens of thousands of Mexicans from the United States in the early 1930s, including some who had America citizenship. Or consider federal Indian policy undertaken by executive branch bureaucrats in the nineteenth century, which involved "detention of Native peoples without any avenue for redress, forced separation of Native families, criminalization of religious beliefs, and a violent 'civilizing' process of Native adults and children." For most of American history race-related administrative constitutionalism was mostly neglectful of, and sometimes outright hostile to, the rights and interests of minorities.

The lesson of history is not that administrative constitutionalism leads to "good" or "bad" results from any given ideological perspective, but that administrative agencies will, like other political/governmental actors, act according to circumstances and incentives.

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  1. “… but that administrative agencies will, like other political/governmental actors, act according to circumstances and incentives…”

    This needed to be in flashing bold font.

    1. “Power corrupts, and absolute power corrupts absolutely.”

  2. “Or consider ….Or …. Or ….”

    One might almost think there was some common thread of government malfeasance.

  3. “What is and Should Be the Role of Administrative Agencies in Developing Constitutional Rules and Norms?”

    Nothing, nothing at all.

    1. That was my reaction: Administrative agencies should be entirely on the receiving end here, they should have no role at all in creating these rules and norms.

  4. The divide is not between conservatives and liberals, or Congress and the administrative state, but between the knowledgeable and the ignorant, the hardworking and the lazy, the brave and the cowardly.

  5. One might consider a blizzard of anecdotes does not prove a narrative.

    Government sucks, both at the agency level and at the more popularly accountable level like Congress or the President. But the alternative when government steps back is markets, and markets also suck; their accountability may be better but it’s an accountability to incentives that are often worse than government’s, unless you think profit is the only fundamental good that exists.

    That’s why regulated markets are our best, albeit flawed, choice. Each institution curbing the excesses of the other.

    1. One anecdote is not proof. A blizzard of anecdotes is.

      1. !! No, it’s really not.
        It’s barely even evidence.

        The plural of anecdote is not data.

        1. A “blizzard” implies a whole lot of data points. There’s your data. You chose the word. Walk it back, or accept what you said.

          1. Anecdotes are not well-curated data. You don’t have a baseline or a well-defined super-set.

            You’re basically leaning into confirmation bias as hard as possible.

            Anecdotes are good counterexamples to sweeping statements, and can be exemplary. Do not take them as anything more, lest you just assume all your preferred narratives are true based on all the anecdotes you’ve seen.

        2. Sorry, but a blizzard is the basis of inductive reasoning.

          1. Not without a baseline, else you’re just in confirmation bias land again.
            E.g. a list of dog owners who were also mass murderers isn’t a great start for your inductive journey if you want to end in truthtown.

    2. How do markets have worse incentives than government? Government bureaucrats have one single incentive: grow their fiefdoms. Markets too have that one single incentive, but when failure is possible, as it is not in government, there are a zillion different failure modes and a zillion different ways of avoiding failure. There’s where the market incentives are.

      1. Government can tune it’s internal incentives in a way markets cannot.
        That’s why pure direct democracy is such a bad idea; it does not allow that tuning, reducing government to a single incentive.

        1. >>Government can tune it’s internal incentives in a way markets cannot.

          ROFL Oh, do *share*! I can’t claim national universal knowledge, but I have a quarter century dealing with the laws and practices of Florida governmental agencies and I assure you your assertion is nonsensical. Indeed, the legal counsel for state agencies would get together and try to figure out whether and how tactics (many having been adopted by private organizations and offering flexibility and efficiency) could be legally implemented by the agencies. Overwhelmingly, the answer was legislative or regulatory changes were required. This is the opposite to being able to easily “tune” incentives.

          And, what does “pure democracy” (which involves the majority insisting the minority doing their way) have to do with market forces, where the minority can find another supplier that meets their needs or wants, so both majority and minority are served?

          1. I’d argue that’s the system working as intended, susan. You don’t want an agency to be able to tune it’s own incentives otherwise they aren’t really incentives at all.

            You want incentives to come from some other source, e.g. the legislature. Or to come from a process defined by an external source like in the APA.

            Pure democracy is when the people vote directly for the policies they want.
            It doesn’t have the remove that allows legislatures to set up broad purpose-based agencies that are insulated from popular demand, and can thus have alternate incentives than please the most people the most amount of the time.

    3. “That’s why regulated markets are our best, albeit flawed, choice. Each institution curbing the excesses of the other.” This has nothing to do with the actual article, which doesn’t address markets vs. regulation at all.

      1. Indeed.

        My original comment was meant to be a reply to Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf’ s 9:47 am post but didn’t thread correctly (probably my own error).

        As to the OP, I can’t really opine on that particular aspect of administrative law very well. However, I did find 2 bits of note that didn’t seem supported by your brief excerpt – the idea that public accountability will lead to more liberal outcomes, and the idea that constitutionality and liberality are congruent.

        I’d also note that For most of American history race-related administrative constitutionalism was mostly neglectful of, and sometimes outright hostile to, the rights and interests of minorities would seem elide the fact that for most of American history judicial and legislative constitutionalism was also neglectful of the rights and interests of minorities, as was the American populous. I don’t know that the alternative of more popular accountability would have lead to better outcomes.

  6. We were never meant to be a nation of bureaucrats. That is for Europe. Or was meant to be Europe. Now we are just that version minus a few thousand departments.

  7. I think you should add the My Lai Massacre to your list of illiberal events caused by bureaucrats.

  8. And yet we’re THE greatest country in the history of the world in spite of the Chicken Littles here.

    I always chuckle when I see doom-n-gloom arguments.

    Just where did this big, bad Government come from anyway?!?

    1. And yet we’re THE greatest country in the history of the world in spite of the Chicken Littles here.

      I always chuckle when I see doom-n-gloom arguments.

      “My Grandpappy smoked three packs a day and drank whiskey like water, and he lived to 105!”

  9. I think it is sort of inevitable that the executive branch is going to develop constitutional rules and norms over time. While the judicial branch has the final say on interpretation of the law, the executive branch cannot function without legal interpretation. They are presented with words in the form of statutes from the legislature, the Constitution itself, and court decisions interpreting the first two. They need to figure out what these mean to perform their function. A police officer has to figure out what is required of him before seeking a warrant or performing a search. An executive hearing board needs to figure out what due process is required for a hearing. A bureaucrat needs to figure out what he’s allowed to do before writing a regulation or issuing/denying a permit. If any of this was easy, there would be no need for a legal system.

    But what does their interpretative role have to do with rule and norm-setting? As the executive becomes more consistent in their views over time, this will inevitably influence the courts and people generally in determining what the constitutional limitations are. And this will happen independent of any notion of deference to an agency. There is no idealized standard for constitutional questions that courts can “discover.” Rather it will always be based on human conduct. Their notions of what are the constitutional limits on executive agents will inevitably be influenced by how the executive agents conduct themselves. Think about the Fourth Amendment, it would be foolish to suggest that its interpretation of what is a reasonable search is uninfluenced by the day-to-day operation of police officers and their interpretation of what is reasonable. Same goes for how administrative agencies choose to address certain questions.

    Should the courts be skeptical of how the executive conducts itself? Absolutely. Is it reasonable to suggest they ignore it and try to create rules based on ideals that are somehow independent of how humans actually conduct themselves in the real world? Probably not.

  10. I kind of thought this issue was settled in 1789.
    (with a few tweaks from time to time; last in 1992)

    1. Deep State paranoia aside, there are no small differences between civil servants and an aristocracy.

      1. “no small differences between civil servants and an aristocracy”

        Do you mean “some”?

        1. Something like that. Dunno what I was going for, but I failed.

  11. One of the difficulties of a post like this is that it’s hard to understand what it’s about. Does it refer to administrative agencies defining constitutional questions or getting power from courts? Or does it refer to administrative behavior creating expectations about “the way things are” that judges then take for granted?

    The general approach – “liberals can’t assume administrative agencies will alway look at things liberally, because we might have a republican president” – seems a bit obvious after decades of mostly republican administrations, and seems no different about what could be said about judges. Or any other branch of government for that matter.

  12. The difference is who is in power. The Left wants absolute power, but only they can be trusted with such power, so once they attain power they seek to oppress their political rivals.

    When I am weaker than you, I ask you for freedom because that is according to your principles; when I am stronger than you, I take away your freedom because that is according to my principles

    The mantra of the progressive.

    1. Heck yeah!

      **twirls mustache**

    2. Yes. The right wing has never in human history sought absolute power and then used that to oppress their political rivals. I mean it just doesn’t happen. In fact, there has never been a right-wing government in history that was a dictatorship that cut out the political opposition by force. I mean how would such a thing ever occur? And it would be totally impossible for me to come up with a wide variety of examples of such governments in Latin America and Europe.

      1. Most “right wing” dictatorships were not right wing. They were only to the right of Lenin.

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