Editor’s Note: On October 19 and 20, 2018, University of Pennsylvania Law Review hosted a symposium on administrative constitutionalism.
In the last ten years, a field of scholarship has developed that sheds new historical and theoretical light on interlocking issues of administration and constitutional law. Gathered under the moniker administrative constitutionalism, these scholars study the constitutional roots of the administrative state, the role that its agencies play in interpreting, implementing, and transforming constitutional law, and the tools that presidents, legislators, judges, and everyday citizens use to control the administrative state’s constitutional creativity.
The University of Pennsylvania Law Review’s Vol. 167 Symposium event and accompanying issue are the first to tackle the timely topic of administrative constitutionalism. Bringing together leading scholars to analyze and debate constitutionalism in and of the administrative state, it will generate cutting edge work on the history, theory, and practice of administrative constitutionalism.
Papers presented there (and related content) are soon to be published by the Penn Law Reviehttps://www.pennlawreview.com/w and The Regulatory Review. The Docket is pleased to present Professor Reuel Schiller’s commentary on three of the symposium papers, and will update this post with links to more content.
Administrative Constitutionalism and the History of the Administrative State
One does not have to look too far into the history of the administrative state to see manifestations of administrative constitutionalism. Consequently, explorations of the development of the administrative state are excellent places to look to discern its dynamics: how agencies deploy constitutional arguments (or avoid doing so), how these arguments shape administrative action, and how courts and legislatures attempt to retain their control over constitutional decision-making. The Pennsylvania Law Review will soon publish articles by three leading historians of the administrative state as part of a symposium on administrative constitutionalism. These articles—by William Novak, Jeremy Kessler, and Joanna Grisinger—are excellent examples of the way in which historical explorations of the administrative state can inform discussions of administrative constitutionalism. They suggest new avenues of inquiry for scholars who wish to address both historical and contemporary issues relating to the interaction between constitutional decision-making and the administrative state. In particular, these articles have a lot to tell scholars of the administrative state about how administrative constitutionalism shapes agency efforts at promoting their own legitimacy. They also illustrate how opponents of agency action deploy anti-statist ideologies to hobble agency attempts at constitutional interpretation.
Novak’s piece forcefully places democracy back into the discussion of administrative state. His key point is that promoting democratic values has frequently been a goal of administration. He demonstrates that this fact has been ignored in many discussions of the administrative state that portray expertise-driven administration as antagonistic to representative democracy. The study of the administrative state, Novak argues, has had an over-emphasis on Weberian expertise at the expense of the democratic impulses with which many reformers wished to imbue administration. Thus, we can think of Novak’s paper as an attempt to highlight administrative constitutionalism’s version of popular sovereignty.
Novak is onto something here. Historians of the administrative state often fetishize expertise. Thus, it is a welcome correction to demonstrate how democratic impulses permeate administrative thought and practice. Indeed, the 1930s – a period, perhaps, more sympathetic to these impulses than the Progressive era that Novak focuses on – have many examples of these democratic currents in administration. Meg Jacobs’ work describes how New Deal-era agencies such as the National Recovery Administration, the Office of Price Administration, and the National Labor Relations Board consciously sought to mobilize people whose voices had been under-represented in the political process. Similarly, Karen Tani has demonstrated that New Deal and postwar welfare bureaucracies sought to turn welfare recipients into rights-bearing citizens, capable of participating in a robust democratic governance. Most significantly, New Dealers themselves frequently described effective administrative governance as the embodiment of liberal democracy. They contrasted it with forms of executive power that arose from the illiberal democratic impulses that were so obvious to them at the time. If the state was unable to effectively solve social and economic problems, they argued, the people would press for totalitarian solutions. New Dealers often used this argument to link the administrative state with democracy.
That said, Novak suffers from a “babies with the bathwater” problem. We need to avoid an overcorrection. Just because historians of the administrative state have ignored the way administration can promote democratic governance, we should not ignore how Weberian, expertise-driven bureaucracies can further deeply anti-democratic policies if doing so promotes the policy agenda of the bureaucrats running them. I am sure the Brotherhood of Locomotive Engineers would dissent from Novak’s portrayal of Charles Francis Adams as a proponent of democratic administration. After all, the decision of his Massachusetts Board of Railroad Commissioners to crush the Brotherhood’s 1877 strike did not seem designed to promote egalitarian, democratic principles. I imagine there would be a similarly puzzled response from Chinese immigrants excluded from the country by the Bureau of Immigration in the early twentieth century, the victims of post-war anti-communist bureaucracies, or the clients of less-enlightened welfare bureaucrats of the 1950s and 1960s.
The key for historians of the administrative state is to understand the push and pull between the administrative state’s democracy-promoting functions and its less democratic impulses. This is certainly a familiar theme in the discussion of constitutional law, so it seems like particularly productive lens through which to view administrative constitutionalism.
Jeremy Kessler’s article also suggests ways in which historical studies of the administrative state illuminate the functioning of administrative constitutionalism. Kessler’s narrative demonstrates that the Selective Service System had a particular constitutional value—equal protection—beaten out of it by a federal judiciary and a Congress that wished to emphasize a different constitutional value – due process. He shows how the Selective Service bureaucracy switched from an egalitarian model of the draft, in which everyone serves, to a channeling model that encouraged deferments and volunteers. In doing so, the Selective Service abandoned the goal of egalitarian military service, a model premised on equal protection. That goal was replaced by an emphasis on giving potential draftees due process protections that ensured their ability to adjudicate their claims of conscientious objector status and their deferments. As Kessler shows, by the late 1950s and early 1960s, judicial and Congressional hostility towards the egalitarian draft made this due process model the path of least resistance, despite Selective Service Director Lewis Hershey’s touching efforts to protect the egalitarian model.
Hershey, as it turned out, anticipated the catastrophic effect this shift would have on the legitimacy of the draft when the war in Vietnam generated increased manpower needs. Deferments and conscientious objector status, larded up with due process protections, were disproportionately available to affluent (or at least middle class) white men. Consequently, the burdens of the fighting and dying in south-east Asia were increasingly borne by the poor and by racial minorities. The patent injustice of this situation undermined the war effort and led to the abolition of the draft altogether.
Kessler’s narrative highlights two aspects of administrative constitutionalism beautifully. First, it shows the way in which administrative constitutionalism can serve a legitimating function for bureaucracies. The agency’s commitment to constitutional values – the equal protection norm in this case — legitimated the agency’s actions. When it abandoned this constitutional value, it undermined its own legitimacy. This observation is a potent counterargument to the typical separation of powers/due process complaints about administrative constitutionalism. Kessler demonstrates that when the agency implemented a particular constitutional value (equal protection), it preserved its legitimacy, but when courts and Congress imposed a different constitutional value (due process), that legitimacy was fatally compromised. This story thus calls into question the administrative law truism that only judicial imposition of constitutional values can legitimate the administrative state.
Kessler’s narrative also illustrates the difficulty competing institutions have in furthering competing constitutional claims. His story shows how courts do not always have to bear the cost of constitutional decision-making, while agencies do. Thus, Kessler’s narrative suggests that administrative constitutionalism may result in a more thorough consideration of consequences of constitutional decision-making than does constitutional decision-making by courts. After all, it is the agency actors who bear the costs of adhering to constitutional values regardless of which institution requires them.
Joanna Grisinger’s article on the New York City Commission on Human Rights’ (NYCCHR) battle against apartheid is part of a fascinating, on-going project about the administrative state, civil rights, and international relations in postwar America. It combines administrative constitutionalism with important work situating the American Civil Rights Movement in a global context. In doing so, it highlights two issues that scholars of administrative constitutionalism should consider.
First, Grisinger’s narrative illustrates how local administrative entities are an important locus for exploring administrative constitutionalism. The study of the administrative state has long favored a focus on federal and, to a lesser extent, state administrative entities. Yet local government is deeply administrative, and it touches on issues with profound constitutional ramifications. Contracting, licensing, and zoning, for example, implicate a host of constitutional issues such as free speech, takings, and, as Grisinger shows, equal protection. Grisinger demonstrates how productive (and fascinating) a look at local administrative entities can be.
Second, Grisinger’s story suggests subtleties in the scope of administrative constitutionalism that should compel us to expand our ideas about how it is deployed by governmental and private actors. Like Kessler’s administrators, the NYCCHR tried to further what we might call “equal protection values” – in this case, racial egalitarianism. The constitutional dynamic, however, was different. The NYCCHR was furiously trying to avoid being considered a constitutional actor. The agency repeatedly cast its goals as a local, statutory ones. It was just protecting its own citizens from discrimination within the five boroughs. What makes Grisinger’s story one of administrative constitutionalism is that the administrator actor is disavowing the constitutional dimension of its actions.
This dynamic suggests that scholars of administrative constitutionalism should explore the mechanisms of constitutional avoidance and how they apply in the administrative context. Grisinger shows us how the NYCCHR attempted to manipulate constitutional doctrines not only to promote specific policies, but also to promote its own legitimacy by denying its status as a constitutional actor. Courts employ the Ashwander doctrine, the political question doctrine, and process theory chestnuts like avoidance and admonition in similar circumstances. Grisinger’s story suggests that a thick description of administrative constitutionalism will need to explore the administrative equivalents.
Each of these papers stands on its own as illustrations of how historical inquiries can inform discussions of administrative constitutionalism. Taken together, however, they are a particularly powerful contribution to this discussion. Together they address broader themes that scholars of administrative constitutionalism need to confront.
First, all three articles have something to say about the sources of legitimacy for administrative constitutionalism. Administrative constitutionalism’s analytic power is derived from the fact that it contradicts one of the central tenets of postwar American civic religion: that courts in general, and the Supreme Court in particular, have a monopoly on constitutional interpretation. Scholars in this area delight in showing how this monopoly is a myth. Agency actors, it turns out, engage in constitutional law-making all the time. Nevertheless, the myth is a potent one, particularly to the extent that it comports with a post-Marbury understanding of separation of powers. This, as Gillian Metzger has written, is why agencies acting as constitutional decision-makers inhabit an “ambiguous constitutional space.”
Because agencies occupy this sort of space, they are compelled to engage in legitimating behavior more forcefully than courts or legislatures. Accordingly, one project for students of administrative constitutionalism might be to catalogue such behavior. Certainly all three of these papers nicely illustrate this process. Both Kessler and Grisinger’s papers describe agencies attempting to legitimate constitutional or quasi-constitutional law making. Kessler’s actors attempted to do so by furthering a constitutional norm of equality. By surrendering this norm in the 1960s, the Selective Service brought on a crisis of legitimacy. Grisinger’s actors, in contrast, attempted to legitimate themselves by disclaiming they were constitutional actors at all. Perhaps we could call it “legitimation through denial.”
Novak’s piece, on the other hand, does not describe agency actors attempting to legitimate administrative constitutionalism. Instead, Novak himself is engaged in that process. By grounding agency action in democratic impulses (let’s call it popular sovereignty) rather than expertise or efficiency, Novak seeks the ultimate source of legitimacy in the American constitutional schema: the people. Novak is the Alexander Hamilton for the administrative state, and this piece is his Federalist 78.
A second theme that runs through these articles is hostility towards the state. They are united by various versions of hostility towards bureaucratic authority. For Novak it is embedded in the historiography he recounts. Americans have such trouble seeing democratic administration, he argues, because so many people embrace the “bureaucracy fetish” in order to trash the state. This happens on the right, of course, but it is just as significant a strand of thought of the postwar left. Who embraces the bureaucracy fetish (to condemn it) more than C. Wright Mills, Charles Reich, or Theodore Lowi? Indeed, by the 1960s, less radical thinkers – Louis Jaffe, Kenneth Culp Davis — make the same move.
Kessler’s story is also driven by hostility towards the state. Eisenhower was explicit about creating “The New Look” defense strategy to protect free markets and limited government. The Selective Service’s repeated losses in the courts – themselves driven by libertarian constitutional principles – combined with the New Look to shift the Selective Service’s emphasis from equality to due process-enabled sorting. The fact that the sorting function was itself an obvious exercise of state power does not alter the fact that the shift in the Selective Service’s focus was driven by hostility towards the state.
Perhaps we have to squint a little to see it in Grisinger’s piece, but there is a vision of less robust state here as well. It is obvious in the New York Times’ free speech defense. It is also part of the defendant’s claim that local government loses its authority when it strays from its traditional role. This argument is analogous to police powers limitations on state action. By creating a constitutional requirement that limits certain state actors to certain policy areas, the defendants in Grisinger’s lawsuits articulated one of the most traditional arguments designed to create a sphere of private action that the government could not invade.
not surprising that the battle between governmental activity and hostility
towards the state are manifest in each of these papers. One of the central
themes of the history of the administrative state is the political and legal
conflicts over how robust the state should be. This theme has a particular intensity when
administrative actors engage in constitutional decision-making. That
anti-statist themes emerge particularly potently in these papers suggests that
currents of anti-statist thought have particular purchase in the face of
administrative constitutionalism. All
three papers illustrate that anti-statist arguments can be deployed with
particular success in this environment. Administrative
actors exercising constitutional powers may have to go an extra mile to assure
the legitimacy of their actions because courts and legislatures are particularly
vigilant border guards of this “ambiguous constitutional space.”
 Meg Jacobs, Pocketbook Politics: Economic Citizenship in Twentieth-Century America (Princeton: Princeton University Press, 2004); Meg Jacobs, “State-Building From the Bottom Up: The New Deal and Beyond,” in Gary Gerstle, Nelson Lichtenstein, and Alice O’Connor, eds., Beyond the New Deal Order (Philadelphia: University of Pennsylvania Press, 2019).
 Karen M. Tani, States of Dependency: Welfare Rights and American Governance, 1935-1972 (New York: Cambridge University Press, 2016)
 Reuel Schiller, “Regulation and the Collapse of the New Deal Order, or How I Learned to Stop Worrying and Love the Market,” in Gerstle, et al. Beyond the New Deal Order.
 Thomas K. McCraw Prophets of Regulation (Cambridge, Mass.: Belknap, 1984), 40-44.
 Lucy E. Salyer, Laws Harsh As Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995).
 Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 240-46; Karen Tani, “Flemming v. Nestor: Anticommunism, the Welfare State, and the Making of ‘New Property,’” 26 Law and History Review, 379-414 (2008).
 Tani, States of Dependency, 214-44; Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973 (New Haven, Yale University Press, 1993), 6-21.
 For a typical (and influential) assertion of this idea, see Louis L. Jaffe, Judicial Control of Administrative Action (Boston: Little Brown, 1965), 320-27.
 For evidence of the dominance of administrative action in local governance see, Kim Phillips-Fein, Fear City: New York’s Fiscal Crisis and the Rise of Austerity Politics (New York: Metropolitan Books, 2017), and Robert A. Caro, The Power Broker: Robert Moses and the Fall of New York (New York: Vintage, 1974). Caro’s book is awash with unacknowledged administrative constitutionalism, particularly with respect to eminent domain and equal protection.
 Gillian E. Metzger, “Administrative Constitutionalism,” 91 Texas L. Rev. 1897, 1901 (2013).
 Reuel Schiller, “The Curious Origins of Airline Deregulation: Economic Deregulation and the American Left,” __ Business History Review ___ (forthcoming).
 Reuel Schiller, “Enlarging the Administrative Polity: Administrative Law and the Changing Definition of Pluralism, 1945-1970, 53 Vand. L.Rev. 1389, 1410-16 (2000)