The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


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.


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.