VOLUME 167, ISSUE 7 May 2019


Research on administrative constitutionalism has generally come out of law schools, from scholars specializing in public law. A limitation of the existing scholarship is its relatively thin empirical foundation.

Administrative constitutionalism is hard to see because much of what administrators do is hard to see, and because the significance of some administrative interpretations only becomes apparent over time. This Article expands the archive, by alerting legal scholars to fine‐grained historical research on Americans’ encounters with administrative agencies. This body of work—coming largely out of history departments—is particularly attentive to the experiences of marginalized and non‐elite populations. And although the historians writing in this vein have not always emphasized the constitutional aspects of their stories, those aspects are there between the lines. By analyzing two examples—the Freedmen’s Bureau’s interpretation of the Thirteenth Amendment and immigration officials’ interpretation of the Fifth Amendment due process guarantee—this Article demonstrates what historians have to offer the study of administrative constitutionalism, both empirically and normatively. American history, this research reminds us, is about competing constitutional visions. Administrators helped pick winners and losers in an ongoing battle for formal legitimacy.

The Northwest Ordinance is the fourth of the organic laws of the United States that preceded the U.S. Code, alongside the Declaration of Independence, the Articles of Confederation, and the Constitution respectively. A lesser‐explored aspect of the Ordinance is the structure of government it created by delegating executive, legislative and judicial power over the Northwest Territory (subject to Congressional limits) to a governor, a secretary, and three judges.

Viewed anachronistically, government under the Ordinance strongly resembled the modern administrative state; empowering federal officials to exercise power over U.S. citizens. The language of the fourth organic law may have resembled a state constitution, but in reality, it imposed not from below, but from above. The federal officials in charge derived their authority not from the people they governed, but from Congress.

This Article explores through a historical legal account the Ordinance as a creature of early administrative construction and as a necessary example from which to view the current debate, revealing the limits of popular sovereignty in the United States and the failure of territorial governance to include the people that it governed.

Administrative constitutionalism has been defined as “regulatory agencies’ interpretation and implementation of constitutional law,” and has come to represent a wider variety of administrative behavior and statutory construction. A finer approach to administrative constitutionalism may reveal the constitutional characteristics of those individual administrators as they engage in administrative decsionmaking. This Article recounts the story of how the New York City Commission on Human Rights sued the New York Times for violating a municipal human rights law that targeted job ads within the city that “directly or indirectly” discriminated on the basis of race, and analyzes the actions of the Commission administrators and their legal, intellectual, and political motives behind the statutory challenge.

This particular case study of anti‐apartheid activism at a municipal commission describes the winners and losers in a fight over racial discrimination and demonstrates how the municipal commission context, and the presence of external groups, mattered.

Administrative constitutionalism can be defined broadly or narrowly. Defined most broadly, it refers to agencies’ role in constructing constitutional norms such as adequate due process, the bounds of free speech, or the scope of executive power, whether or not agencies consider themselves to be doing so. More narrowly, it includes only instances in which agencies self‐consciously consider the meaning of the Constitution in designing policies and issuing decisions.

Broadly defined, it includes all instances in which agencies implement the Constitution, even if they do so merely as a precursor to determination of the constitutional question by Congress or the courts. More narrowly defined, administrative constitutionalism encompasses only those instances in which an agency has the final say or interprets the Constitution in a way that sets it against the courts or Congress.

However defined, this Article argues that historians’ case studies of administrative constitutionalism suggest that administrative agencies have been the primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of administrative constitutionalism has changed significantly over time as the balance of opportunities and constraints has shifted. That said, the Article also contends that over the twentieth century, and especially since the New Deal, courts have cast an increasingly long shadow over the administered Constitution. In part, this is because of the well‐known expansion of judicial review during this period. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that administrative constitutionalism may still be the most frequent form of constitutional governance, but it has grown, paradoxically, more suspect even as it has also become far more dependent on and deferential to judicial interpretations.

By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower’s New Look, this Article explores the role that administrative constitutionalism played in the development of the American national‐security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back‐and‐forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may be more usefully understood as products, rather than preconditions, of administrative constitutionalism.

In the debate about who controls the meaning of the Constitution, popular constitutionalism appears to be losing. Popular constitutionalist methods for popular input into the evolving meaning of the Constitution account for a diminishing fraction of changes to constitutional meaning over time. Social movements remain rare, Congress is increasingly dysfunctional, and recent presidential proclamations and executive orders have not engaged constitutionalism with the degree of specificity necessary to influence the meaning of the Constitution. Focusing on these traditional methods, it appears that judicial supremacy has won and that courts exercise near‐exclusive control over the meaning of the Constitution.

In this Article, I argue that such appearances are deceiving. As the debate between popular constitutionalism and judicial supremacy faded from legal scholarship a decade ago, new descriptive and normative accounts of agencies as actors involved in determining the meaning of the Constitution have emerged. Administrative agencies, through their statutory implementation and enforcement roles, are involved in the application of constitutional principles embedded in statutes. While agencies lack the popular pedigree of Congress and the President, these implementation and enforcement decisions often involve the people either formally through notice‐and‐comment rulemaking or informally through interest group and social movement engagement. Although not labeled “popular constitutionalism,” these forms of popular engagement with agencies that have been richly explored in the historical and normative accounts of administrative constitutionalism should be understood as forms of popular constitutionalism.

Beyond connecting administrative constitutionalism to popular constitutionalism, this Article will identify another means by which agencies through their actions involve the people in constitutional meaning determinations. This account requires a shift in focus from the popular inputs into administrative constitutionalism to the outputs from administrative constitutionalism. I show through the example of recent administrative actions enforcing the Fair Housing Act how administrative actions serve as catalysts for popular debate about the constitutional principles embedded in statutes and the means by which these constitutional principles should be applied.

How can the nondelegation doctrine still exist when the Court over decades has approved so many pieces of legislation with fairly unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the intelligible principle, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine.

The nondelegation doctrine remains alive, and is more manageable and coherent too, even if it has almost never been invoked to strike down legislation authorizing lawmaking by executive officers. Its infrequent use to invalidate legislation—even when these laws impose minimal decisionmaking constraint—is not a function of judicial confusion or of the Supreme Court’s abandonment of the doctrine. It is instead a function of the doctrine itself being grounded in more than just an intelligible principle test—and of the fact that legislation only infrequently seeks to effectuate grants of authority that reach the extremes on both dimensions of delegation.

“Presidential constitutionalism” has a distinctive origin in the duties of the President laid out in the Constitution. This article will consider a particularly powerful example of presidential constitutionalism: the Obama Administration’s leadership on the issue of marriage equality for lesbian, gay, bisexual, transgender, queer, and similar (LGBTQ+) persons. Presidential constitutionalism was effective because the chief executive articulated a robust principle (equal citizenship for sexual and gender minorities), application of that principle to the marriage issue was deeply deliberative within the executive branch and invited involvement by the judicial and legislative branches, and the process allowed the electorate to express its views. The combination of a robust principle, institutional deliberation, and popular feedback created conditions for immediate and powerful entrenchment of new rights for sexual and gender minorities.

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