The Perils of Administrative Constitutionalism: An American Perspective

I. Introduction

Controversy has erupted in Canada over judicial decisions adopting strong deference to administrative rulings with human rights implications.^[1] This deference has come to be known as the Doré/Loyola framework.^[2] The crux of the controversy is the Canadian Supreme Court’s declaration in Doré v Barreau du Quebec^[3] that when an administrative decision involving discretionary use of authority implicates Charter protections of rights such as freedom of speech, “[o]n judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play.”^[4]

Under this framework, if the administrative decisionmaker has acted reasonably in its balancing, its decision will be upheld. The Court explained in Doré that a reasonable decision requires the decision-maker to (1) “consider the statutory objectives” giving rise to the discretionary power; (2) assess how the decision implicates Charter values; and (3) “balance the severity of the interference of the Charter protection with the statutory objectives,” with a the goal of determining “how the Charter value at issue will best be protected in view of the statutory objectives.”^[5] In the Loyola case,^[6] the Supreme Court reiterated that administrative decisionmakers considering action that implicates charter values must engage in a proportionality analysis, and that the standard of judicial review is not a de novo decision as to whether the decision was substantively correct, but whether it was merely reasonable.

Doré involved an attorney whose license was briefly suspended by the Barreau du Québec’s Disciplinary Council for writing an insulting letter to a judge. Loyola involved the question of whether Quebec infringed on the religious freedom of a Catholic high school in Montreal by requiring it to teach the province’s Ethics and Religious Culture program. As an American with no particular expertise in Canadian constitutional or administrative law, others are much better situated to discuss the precise implications of this framework, when it applies, and its scope.^[7] It appears, however, that Canadian commentators believe that the Doré/Loyola framework applies broadly to administrative decisionmaking, which would include decisions by what one might call mission-driven agencies, i.e., administrative agencies established with the purpose of enforcing a particular type of law, such as environmental laws, human rights (what we in the States call civil rights) laws, health and safety laws, and so on.

If so, the Canadian Supreme Court seems to have implicitly endorsed what has come to be known in the United States as “administrative constitutionalism,” the independent role of administrative agencies in influencing, creating, establishing, and governing based on constitutional norms.^[8] The administrative constitutionalism scholarship “asks us to take administrators seriously as constitutional actors, and to tease out the mix of constitutional and statutory interpretation, and of legal, intellectual, and political motives involved in administrative decisionmaking.”^[9]

The U.S. Supreme Court has never endorsed the notion that administrative agencies should be engaging in constitutional decisionmaking, especially when it’s not supported by, much less conflicts with, existing judicial precedent. Nevertheless, a group of American legal historians has found numerous examples of agencies acting more or less autonomously in creating and enforcing their own versions of constitutional norms and rules. For example, Sophia Lee has described how administrators at the Federal Communications Commission and the Federal Power Commission in the 1960s and 1970s handled the question of whether the U.S. Constitution’s equal-protection-of-the-law guarantee required them to enforce equal employment opportunity rules against the industries they regulated.^[10] Karen Tani, meanwhile, has studied how federal welfare officials relied on their understanding of constitutional norms to provide procedural protections to recipients of federal assistance, even though these protections had little if any statutory basis.^[11] Tani has also studied how during the Obama administration interest groups and activists persuaded the Office of Civil Rights at the Department of Education to create sweeping liability for American universities unless they enforced draconian rules regarding the investigation and punishment of sexual assault.^[12]

Eric S. Fish has recounted how government administrators, in this case federal prosecutors, developed constitutional norms that are more protective of civil rights and civil liberties than the courts have been.^[13] Blake Emerson has examined the development of Department of Housing and Urban Development rules promulgated during the Obama administration requiring regulated parties under the Fair Housing Act to “affirmatively . . . further fair housing.”^[14] Lewis Grossman described the way AIDS activists persuaded the FDA bureaucracy to speed up the availability of drugs that might slow or stop the progress of the virus.^[15] Marie-Amélie George has focused on the role played by state and local agencies and bureaucrats in advancing the rights of gays and lesbians.^[16] And Joanna Grisinger has recounted ultimately unsuccessful efforts in the early 1970s by activists working in concert with the New York City Human Rights Commission to hold the New York Times liable for racial discrimination for publishing advertisements for employment in South Africa, jobs implicitly limited to whites.^[17]

While these articles explore a dizzying variety of administrative decisionmaking, all involve examples of administrative agencies advancing, or at least attempting to advance, goals deemed admirable by modern progressives. Some recent scholarship on historical examples of administrative constitutionalism has been less sanguine about the role that agencies have played vis a vis minority rights. Gregory Ablavsky suggests that the history of administrative constitutionalism in the Northwest Territory in the early years of the United States shows how administrative constitutionalism can be “a particularly congenial tool for serving normatively undesirable ends.”^[18] Joy Milligan has shown that administrative constitutionalism operated in some contexts to entrench racial segregation.^[19] And Tani has examined administrative interpretation of the scope of the Thirteenth Amendment’s ban on involuntary servitude, and of the Chinese Exclusion Act, and found in both cases that administrators tended to reinforce the racist status quo.^[20]

Meanwhile, some administrative law scholars have been inspired by the historical literature to provide a normative defense of administrative constitutionalism. They suggest that administrators’ advantages over courts include that federal agencies’ notice and comment rulemaking process under the Administrative Procedure Act is far more transparent than judicial decisionmaking, that agencies have a more deliberative process than do courts, and that agencies are more accountable to public opinion than are courts.

Prominent administrative law scholar Gillian Metzger provided early, enthusiastic support for the notion that administrative constitutionalism should be encouraged, especially relative to leaving constitutional issues to courts. Metzger wrote, “Agencies are not only well positioned to enforce constitutional norms effectively, but they are also better able than courts to determine how to incorporate constitutional concerns into a given regulatory scheme with the least disruption.”^[21] Moreover, Metzger added, agencies should feel free to disregard constitutional restraints on their authority that courts would be inclined to enforce, at least if the agencies can provide a good reason for doing so: “a careful explanation of how constitutional concerns were accommodated or why constitutional concerns are outweighed is all that an agency must supply.”^[22]

Bertrall Ross penned a similarly enthusiastic endorsement of administrative constitutionalism.^[23] Ross argued that administrative agencies have much more flexibility than courts to experiment with different applications of constitutional principles and ideals, and that agency-decisionmaking is more responsive to public opinion than is judicial decisionmaking, and therefore has more democratic legitimacy.

Most recently, Sam Bagenstos has praised the Office of Civil Rights of the Department of Education for its aggressive interpretation of federal civil rights law banning discrimination based on sex in higher education.^[24] While many critics have accused OCR of massive, unconstitutional overreach,^[25] Bagenstos praises the agency for serving “as a catalyst for democratic debate, a forum in which that debate has played,” and an “implement of the will of the people.” The Title IX experience, he argued, “supports the claim made by some scholars that administrative agencies can be a key locus of democratic deliberation over the scope of basic rights.”

It’s not hard to understand the source of such enthusiasm for administrative constitutionalism. Most American administrative law scholars are politically progressive, and the U.S. Supreme Court, traditionally the focus of constitutional-law-related scholarship, has been controlled by moderate conservatives since the early 1970s. Donald Trump’s election in 2016 makes it likely that conservatives will control the Court for at least another generation. The history of administrative agencies “making” constitutional law, often in service of progressive goals, provides progressives with the hope that progressive constitutional priorities will be championed by administrative agencies—or at least that they will be more progressive than the Supreme Court.

Moreover, even in its most liberal phase, the Supreme Court has interpreted constitutional rights as consisting almost entirely of limitations on government. The Supreme Court has provided little protection of the sorts of positive or “social” rights favored by progressives, such as welfare rights or the right to be free from private-sector discrimination. Administrative constitutionalism provides for the possibility that agencies will provide implicit or explicit constitutional meaning to positive rights granted by statutes that the Supreme Court will not.

Finally, progressive scholars typically reject constitutional originalism, i.e., looking to the original meaning of a constitutional provision for interpretive purposes, in favor of living constitutionalism, which means taking the Constitution’s broad, general principles and interpreting them in light of the felt necessities of modern times. Administrative agencies, interpreting extant statutes rather than a document written over two hundred years ago, seem well-placed to be a font of constitutional innovation. Of course, one person’s heroic agency enforcing its own enlightened constitutional norms, or another person’s creative constitutional experimentation, may be yet another person’s out-of-control, unaccountable bureaucracy.^[26]

I appreciate that some examples of administrative constitutionalism seem justified. For example, I agree that federal agencies properly experimented with enforcing equal protection norms against monopoly actors empowered by the agencies themselves, as occurred with the NLRB and the FCC, despite the absence of explicit statutory authority to do so.

Nevertheless, I am the skeptical skunk at the administrative constitutionalism garden party. I believe that the faith scholars have expressed in agencies’ capacity to appropriately take constitutional considerations into account is profoundly mistaken. My main concern is that administrative agencies are poor sources for constitutionalism because their structures and incentives tend to lead agencies to expand their power and authority and neglect countervailing considerations, including constitutional ones.

The neglect of countervailing considerations has become an especially pressing issue when in agency enforcement legislation that prohibits invidious discrimination. My recent article in the Notre Dame Law Review discusses why administrative agencies charged with enforcing antidiscrimination legislation while implicitly undertaking administrative constitutionalism tend to be inconsiderate of civil liberties considerations in general, and especially of First Amendment freedom‑of‑speech limitations on their authority.^[27] The analogy in Canada would be to give provincial and local human rights commissions the authority, subject to only very tepid and deferential judicial review, to balance their antidiscrimination agendas against freedom of speech, freedom of religion, and other rights protected by the Charter. It doesn’t take much imagination to understand why the result of giving agencies such discretion would be to empower them to enhance their authority to crack down on perceived discriminatory behavior (including speech!) at the expense of countervailing constitutional considerations. Indeed, back in 2003, I identified an emerging trend in Canada for human rights commissions to favor antidiscrimination concerns over freedom of speech and freedom of religion.^[28]

The problems with administrative constitutionalism by mission-driven agencies, however, goes well beyond the context of antidiscrimination enforcement. Such agencies in general are inclined to interpret their government statutes to enhance their own authority and to neglect competing concerns, including constitutional concerns. There are four basic reasons for this: (1) empire-building; (2) purposivism; (3) the ideological commitment of agency employees, and (4) the reluctance of agencies to consider constitutional constraints on their authority.

Let’s start with empire-building. Agencies increase their budget and authority by expanding, not contracting, the scope of the laws they enforce. Interpreting rules broadly also helps agencies retain the support of politicians and outside interests that provide them political support.^[29] While some the extent to which empire‑building motivates government actors is in dispute among political scientists, it seems fair to conclude that empire-building does explain at least some agency behavior.^[30]

Next we consider purposivism. Purposivism is the notion, arguably dominant in administrative law circles, that ambiguities in statutes should be resolved to further the laws’ underlying purposes.^[31] This encourages agencies to resolve statutory interpretation disputes in favor of broad interpretations of agency authority. The purpose of a statute is not typically considered to be balancing the underlying motivating goal of the statute against countervailing considerations, including expense, constitutional and civil libertarian constraints, ideological opposition, and so on. Rather, purpose is rather naively interpreted to relate solely to the problem the statute is trying to address.^[32] So if a law advances environmental protection, the purpose is often deemed to be protecting the environment regardless of cost, even though the law itself was likely passed after the legislature balanced the environmental interests at stake against the economic cost and other factors.

Next, we have the ideological agenda of government workers. Agencies typically attract employees ideologically committed to their agencies’ missions.^[33] Employees of the Environmental Protection Agency will disproportionately be committed to environmentalism, employees of Veterans’ Affairs to the welfare of veterans, employees of the Food and Drug Administration to government regulation of pharmaceuticals, and so on. There’s nothing inherently wrong with that, but people ideologically committed to a particular goal are less likely than others to heed constitutional objections to that goal.

Fourth, and concomitantly, unlike generalist judges agency staff generally do not see enforcing constitutional limitations on government power as their job. Indeed, some U.S. judicial precedent suggests that agencies should ignore constitutional objections to their actions,^[34] and California’s Constitution explicitly bans administrative agencies from taking constitutional concerns into account.^[35] These rules reinforce agency culture that neglects constitutional limitations on their authority.

While generalist courts have their own imperfections, they don’t share most of the pathologies, described above, that lead agencies to systematically expand their authority and discount countervailing constitutional considerations. Generalist courts’ most important advantage is that they don’t share mission‑driven agencies’ narrow devotion to their statutory missions at the expense of other considerations, including constitutional ones.

One might respond that we can rely on the courts to supervise agencies’ administrative constitutionalism to ensure that it doesn’t conflict with Supreme Court precedent and more general constitutional norms. Yet this is problematic. For one thing, many agency actions are never reviewed by courts. Indeed, sometimes agencies intentionally try to ensure that their enforcement actions won’t be reviewed by courts, for example by issuing generally unvereviewable informal “guidance” rather than formal rules. Moreover, when formal agency regulations are challenged, various immunity doctrines, as well as statutory protections for government employees, often serve to protect even willful agency employees from the consequences of violating Americans constitutional rights.

In any event, my Notre Dame Law Review article shows that at all levels of government, agencies charged with enforcing legislation that prohibits invidious discrimination have interpreted their mandates in ways that threaten Americans’ First Amendment and due process rights. This is not surprising, given that, as I previously discussed, the agencies’ current cultures and incentive structures incline them strongly toward enhancing enforcement and ignoring countervailing considerations. Legal scholars should heed these examples and think twice before wholeheartedly embracing administrative constitutionalism.

All of this is not to say that agencies should ignore constitutional issues entirely. Sophia Lee has persuasively argued that if agencies fail to cultivate internal constitutional sensibilities, the likely alternative is that they will ignore constitutional considerations entirely, leaving the bureaucracy as a constitution-free realm apart from the rare cases in which agency decisions are appealed to courts on constitutional grounds. Instead, agencies should be encouraged to enforce constitutional boundaries required by judicial precedent, should work to ensure that regulatory decisions that impinge on constitutional rights are subject to judicial review, and should refer constitutional questions to executive branch lawyers. This could be lawyers in their own agencies, or in an attorney general or department of justice office. The problem, in other words, is not agencies grappling with constitutional issues, but agencies autonomously creating constitutional rules based on their own priorities, rather than accepting their modest role in a properly-functioning constitutional system.