Administrative constitutionalism

Texas Law Review

Volumn 91, Issue 7, 2013, Pages 1897-1935

  Metzger, Gillian E ^a  

^a The Earth Institute at Columbia University   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84883264641     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (328)

1. Required Warnings for Cigarette Packages and Advertisements, 76 Fed. Reg. 36628, 36694-36702 (June 22, 2011) (codified at 21 C.F.R. pt. 1141).
2. U.S. Dep't of Justice & U.S. Dep't of Educ., guidance on the voluntary use of race to achieve diversity and avoid racial isolation in elementary and secondary schools (2012), http://www2.ed.gov/about/offices/list/ocr/docs/guidance-ese-201111.html.
3. Authority to Use Military Force in Libya, 35 Op. O.L.C. (Apr. 1, 2011), http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf.
4. See Sophia Z. Lee, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, 96 VA. L. REV. 799, 801 (2010) (defining administrative constitutionalism as "regulatory agencies' interpretation and implementation of constitutional law").
5. The D.C. Circuit recently held that the FDA's rule violates the First Amendment. R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1222 (D.C. Cir. 2012). The use of race in educational contexts has provoked numerous Supreme Court decisions, with yet another case to be decided this term, Fisher v. University of Texas, 132 S. Ct. 1536 (2012) (decision granting certiorari).
6. Although dispute over the lawfulness of President Obama's initiation of the use of force in Libya largely ceased when the Libyan government was overturned, debate over the proper constitutional scope of the President's Commander in Chief power and Congress's role with respect to military actions is long lasting and deep. See, e.g., David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-A Constitutional History, 121 HARV. L. REV. 941, 945-50 (2008).
7. See Authority to Use Military Force in Libya, 35 Op. O.L.C. at 6-9 (defending Obama's decision to intervene in Libya on the basis of past constitutional jurisprudence and statutory guidance)
8. Required Warnings for Cigarette Packages and Advertisements, 76 Fed. Reg. at 36694-36702 (justifying the FDA rule requiring warnings on cigarette packages on the grounds that it is permissible according to the relevant Supreme Court precedents)
9. U.S. DEP'T OF JUSTICE & U.S. DEP'T OF EDUC., supra note 2 (discussing the requirements of past precedent, including Brown v. Board of Education and Grutter v. Bollinger, in the context of using race to achieve diversity in elementary and secondary schools).
10. See Lee, supra note 4, at 804 & n.12 (enumerating several examples of administrative constitutionalism and suggesting that the phenomenon is neither new nor infrequent).
11. Implementation of the Fair Housing Act's Discriminatory Effects Standard, 78 Fed. Reg. 11460, 11479-11480 (Feb. 15, 2013) (to be codified at 24 C.F.R. pt. 100).
12. id. at 11460-11461, 11465-11467 (describing reasons for adopting the rule and justifying its interpretation of the FHA as encompassing disparate-effects claims in response to comments).
13. See Olatunde Johnson, The Last Plank: Rethinking Public and Private Power to Advance Fair Housing, 13 U. PA. J. CONST. L. 1191, 1193-1194 (2011) (describing a range of efforts being pursued to affirmatively further minority access to housing).
14. The federal government's authority to force consideration of racial impact and to apply a disparate-impact standard other than to remedy identified racial discrimination is contested. Richard Primus, The Future of Disparate Impact, 108 MICH. L. REV. 1341, 1342-1343 (2010).
15. See Lee, supra note 4, at 827-844 (discussing the Federal Communications Commission's (FCC) promulgation of rules requiring broadcast licensees and common carriers to adopt equal employment programs as instances of administrative constitutionalism, notwithstanding that these rules were justified on a statutory basis and the FCC did not discuss constitutional equal protection).
16. President Franklin D. Roosevelt, State of the Union Message to Congress (Jan. 11, 1944), available at http://www.fdrlibrary.marist.edu/archives/pdfs/state_union.pdf.
17. See Mark Tushnet, An Essay on Rights, 62 TEXAS L. REV. 1363, 1393 (1984) (asserting that "the rights actually recognized in contemporary constitutional law are almost all negative ones" and noting that, in the United States, positive rights are largely recognized through statutes).
18. See William G. Dauster, Protecting Social Security and Medicare, 33 HARV. J. ON LEGIS. 461, 468 (1996) (stating that the majority of Americans "consider Social Security to be one of the government's 'very most important' programs").
19. See William N. Eskridge Jr. & John Ferejohn, A REPUBLIC OF STATUTES: THE NEW AMERICAN CONSTITUTION 83 (2010) (advancing this characterization of what it means for a measure to be constitutional and discussing Social Security's normative entrenchment)
20. Ernest A. Young, The Constitution Outside the Constitution, 117 YALE L.J. 408, 412, 424 (2007) (arguing that "[m]any of our most important individual rights" and basic institutions of government "stem from statutes rather than the Constitution" and including Social Security as one example).
21. See A Eskridge & A Ferejohn, supra note 15, at 2-9, 12-18, 31-34, 171-192 (characterizing the process by which the "small 'c'" constitution emerges from statutory entrenchment, administrative actions, and public deliberation as "administrative constitutionalism" and describing how this process played out with respect to Social Security).
22. See Jerry L. Mashaw, CREATING THE ADMINISTRATIVE CONSTITUTION: THE LOST ONE HUNDRED YEARS OF AMERICAN ADMINISTRATIVE LAW 30 (2012) [hereinafter MASHAW, CREATING] ("The American Constitution of 1787 left a hole where administration might have been.")
23. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 576-577 (1984) ("The Constitution names and ascribes functions only to the Congress, President and Supreme Court, sitting in uneasy relation at the apex of the governmental structure ").
24. The War, State, and Treasury Departments were created by the first Congress in 1789, with the Navy Department following soon after in 1798. Act of Sept. 2, 1789, ch. 12, 1 Stat. 65, 65 (establishing the Treasury Department)
25. Act of Sept. 15, 1789, ch. 14, 1 Stat. 68, 68 (establishing the State Department)
26. Act of Aug. 7, 1789, ch. 7, 1 Stat. 49, 49-50 (establishing the War Department)
27. Act of Apr. 30, 1798, ch. 35, 1 Stat. 553, 553 (establishing the Navy Department).
28. The War and Navy Departments were consolidated in 1947, and named the Department of Defense in 1949. See National Security Act of 1947, Pub. L. No. 80-253, 61 Stat. 495, 499-500
29. Act of Aug. 10, 1949, Pub. L. No. 81-216, ch. 412, sec. 12(a), 63 Stat. 578, 591 (changing the name of the department from the National Military Establishment to the Department of Defense).
30. President Richard Nixon created the Environmental Protection Agency by executive action. Reorganization Plan No. 3 of 1970, 3 C.F.R. 199 (1970), reprinted in 5 U.S.C. app. at 643 (2006), and in 84 Stat. 2086 (1971).
31. The Food and Drug Administration traces its origins to chemical analyses performed by the Department of Agriculture, but in modern form began with the 1906 Pure Food and Drug Act. History, U.S. FOOD & DRUG ADMIN., http://www.fda.gov/AboutFDA/WhatWeDo/History/default.htm (last updated Mar. 1, 2013); Pure Food and Drugs Act, Pub. L. No. 59-384, 34 Stat. 768 (1906).
32. See Gillian E. Metzger, Foreword: Embracing Administrative Common Law, 80 GEO. WASH. L. REV. 1293, 1298-1302 (2012) [hereinafter Metzger, Embracing] (discussing the judicial refinement of a doctrinal framework of administrative law through the APA and case law).
33. See Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 COLUM. L. REV. 479, 490-97 (2010) [hereinafter Metzger, Ordinary Administrative Law] (arguing that constitutional concerns have animated judicial decisionmaking and the development of administrative law doctrines).
34. See Elizabeth Fisher, RISK REGULATION AND ADMINISTRATIVE CONSTITUTIONALISM 27-28, 30 (2007) (defining administrative constitutionalism as a legal culture characterized by two contrasting ideals: the rational-instrumental, guided by the principle of objectivity, and the deliberative-constitutive, which relies on the judgment of individual administrators to maintain the integrity of administrative systems).
35. See Metzger, Ordinary Administrative Law, supra note 20, at 487-90 (describing the features of administrative law that connect administrative law with constitutional norms through either direct compliance with constitutional mandates or avoidance of violating recognized constitutional provisions).
36. As described in Part I, different scholars have offered different accounts of administrative constitutionalism, with some focusing on agency engagement with established constitutional requirements, others emphasizing broader norm deliberation and creation, and still others including Congress and the courts as part of the administrative constitutionalism process, as well as agencies.
37. I mean here to offer a capacious definition that can accommodate the variety of approaches described below.
38. See infra subpart I(A).
39. See infra text accompanying notes 103-107.
40. See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 469-503 (2003) (detailing different political accountability models and critiquing emphasis on presidential accountability)
41. see also Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511, 1550-1554 (1992) (emphasizing public participation in bureaucratic decisionmaking as well as review by Congress and the President as responses to the accountability concerns of the administrative state).
42. See, e.g., Seidenfeld, supra note 26, at 1543-1546 (arguing that the judiciary lacks the capacity to distill common public values and that the courts have no authority to require Congress to change its procedures)
43. see also Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 13-24 (1985) (detailing the separation of powers and federalism problems raised by federal common law).
44. See infra text accompanying note 83
45. see also Metzger, Ordinary Administrative Law, supra note 20, at 484, 507-508 (describing the linkage and reciprocal relationship between constitutional law and ordinary administrative law).
46. See A Metzger, Ordinary Administrative Law, supra note 20, at 534 ("Not only has the Court not overtly developed ordinary administrative law into a tool for constitutional enforcement, it has largely failed to identify the constitutional concerns underlying its development of ordinary administrative law doctrines.").
47. For descriptions of constitutional construction, see Jack M. Balkin, LIVING ORIGINALISM 3-6, 69-73 (2011)
48. Keith E. Whittington, Constructing a New American Constitution, 27 CONST. COMMENT. 119, 120-125 (2010)
49. [hereinafter Whittington, Constructing], and see generally Keith E. Whittington, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWER AND CONSTITU- TIONAL MEANING (1999) [hereinafter WHITTINGTON, CONSTITUTIONAL CONSTRUCTION].
50. See scholarship cited infra subpart I(A).
51. See Lee, supra note 4, at 806-810 (situating administrative constitutionalism in the context of popular constitutionalism and departmentalism).
52. The literature on these developments in constitutional scholarship is vast. For a brief discussion and typology of popular constitutionalism, and citations to the literature, see David E. Pozen, Judicial Elections as Popular Constitutionalism, 110 COLUM. L. REV. 2047, 2053-2064 (2010).
53. For recent leading accounts of constitutional change, see generally Balkin, supra note 30
54. Eskridge & Ferejohn, supra note 15
55. David A. Strauss, THE LIVING CONSTITUTION (2010)
56. Bruce Ackerman, 2006 Oliver Wendell Holmes Lectures: The Living Constitution, 120 HARV. L. REV. 1737 (2007)
57. Young, supra note 15, at 448-61
58. see also Michael C. Dorf, The Undead Constitution, 125 HARV. L. REV. 2011 (2012) (reviewing JACK M. BALKIN, LIVING ORIGINALISM (2011) and David A. Strauss, THE LIVING CONSTITUTION (2010)).
59. See STRAUSS, supra note 32, at 122 (stating that "[t]he New Deal is famous for having greatly increased the number of... agencies" that combined "executive, legislative, and judicial functions")
60. Seidenfeld, supra note 26, at 1518 (noting that the New Deal encouraged Congress to recognize the expertise of agencies and to turn the "expert agenc[ies] loose to regulate").
61. See Metzger, Embracing, supra note 19, at 1363-1364 (noting the focus on administrative structure and agency design in recent administrative law scholarship)
62. see generally Jacob E. Gersen, Designing Agencies, in RESEARCH HANDBOOK ON PUBLIC CHOICE AND PUBLIC LAW 333, 333-357 (Daniel A. Farber & Anne Joseph O'Connell eds., 2010) (surveying public-choice literature on agency design).
63. See, e.g., Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch From Within, 115 YALE L.J. 2314, 2316-2325 (2006) (describing the need to promote greater internal separation of powers in the face of increasing congressional abdication of policy to the executive branch)
64. Elizabeth Magill & Adrian Vermeule, Allocating Power Within Agencies, 120 YALE L.J. 1032, 1038-41 (2011) (describing how power is allocated within agencies and the constitutional constraints on that power)
65. Gillian E. Metzger, The Interdependent Relationship Between Internal and External Separation of Powers, 59 EMORY L.J. 423, 427-37 (2009) [hereinafter Metzger, Interdependent] (describing examples of administrative structures that serve an internal separation of powers function and their constitutional implications).
66. See, e.g., Bruce Ackerman, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC 87-95 (2010) (providing a historical account of executive constitutionalism as practiced by the Office of Legal Counsel and the White House Counsel and arguing that these two offices increasingly serve "to give their constitutional imprimatur to presidential power grabs")
67. Katyal, supra note 35, at 2316-19 (acknowledging the expansion of the modern executive branch post 9-11 and proposing a set of modest internal checks on presidential power, particularly in the foreign policy arena)
68. Trevor W. Morrison, Constitutional Alarmism, 124 HARV. L. REV. 1688, 1691-93 (2011) [hereinafter Morrison, Alarmism] (book review) (responding to Ackerman's "oversimplified account" of executive constitutionalism and suggesting an approach that places greater weight on institutional details and how the executive branch works)
69. Richard H. Pildes, Law and the President, 125 HARV. L. REV. 1381, 1403-1405, 1408-1416 (2012) (book review) (arguing that "an increase in presidential power is not itself an increase in presidential defiance of law or presidential lawlessness" and rejecting an account of law as at odds with politics).
70. Lee, supra note 4, at 810-836
71. see also Sophia Z. Lee, Hotspots in a Cold War: The NAACP's Postwar Workplace Constitutionalism, 1948-1964, 26 LAW & HIST. REV. 327, 334-336 (2008) (noting the role that administrative advocacy played in the NAACP's efforts to pursue its civil rights constitutional agenda).
72. Id. at 812-816.
73. Id. at 801-802.
74. Id. at 813-814, 827-836.
75. See Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189, 1218-19, 1226-1232 (2006) [hereinafter Morrison, Avoidance] (describing instances of the invocation of the constitutional avoidance canon at OLC)
76. Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 MICH. L. REV. 676, 682-683, 704-717 (2005) (describing OLC and the Solicitor General's office as "the principal constitutional interpreters for the executive branch" and providing details on constitutional interpretation in both).
77. Lee's account is more unusual in showcasing constitutional reasoning by officials in agencies outside of OLC, a theme that is increasingly emerging in scholarship on executive branch lawyering
78. See David Fontana, Executive Branch Legalisms, 126 HARV. L. REV. F. 21, 22-24 (2012) (expanding the analytical scope of the executive branch's legal operations from OLC and the White House Counsel's office (WHC) to broader "civil service legalism")
79. Rebecca Ingber, Interpretation Catalysts and Executive Branch Legal Decisionmaking, 38 YALE J. INT'L L. (forthcoming 2013) (manuscript at 11-12, 11 n.37) (on file with author) (emphasizing that legal interpretation and the formulation of policy are largely the work of thousands of government agency lawyers who play a significant role alongside other actors such as DOJ, WHC, and OLC).
80. See Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 STAN. L. REV. 553, 574-577 (2007) (tracing the development of the Fourth Amendment idea of communications privacy to early decisions and practices within the Post Office)
81. Reuel E. Schiller, Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment, 86 VA. L. REV. 1, 15-20 (2000) (discussing how judicial views of administrative expertise and administrative censorship underlay development of First Amendment doctrine).
82. Eskridge & Ferejohn, supra note 15, at 12-13.
83. Id. at 7-8
84. see also Glen Staszewski, Constitutional Dialogue in a Republic of Statutes, 2010 MICH. ST. L. REV. 837, 867-870 (2010) (modeling Eskridge and Ferejohn's account of administrative constitutionalism).
85. Eskridge & Ferejohn, supra note 15, at 33 ("[A]dministrative constitutionalism is the process by which legislative and executive officials... advance new fundamental principles and policies.").
86. Id. at 24, 33.
87. Id. at 33
88. see also Lee, supra note 4, at 800-802 (highlighting the important-and independent-role agency administrators played in interpreting the Constitution to support equal employment rulemaking).
89. Eskridge & Ferejohn, supra note 15, at 33.
90. id. at 18 ("Without denigrating the importance of the Large 'C' Constitution, which establishes the basic structure of our government and remains a potential path toward entrenched commitments, we maintain that the small 'c' constitution of statutes is a better way to develop and express our foundational institutions and norms.").
91. id. at 1-2, 23 (characterizing small "c" constitutionalism as the result of robust deliberation and public discourse).
92. Id. at 33, 58-59.
93. Eskridge and Ferejohn's terminology is a little unclear; at times they appear to use administrative constitutionalism to refer to specifically agency norm development, at others to refer to a broad process including legislative, judicial, and public input.
94. id. at 16 (distinguishing "legislative and administrative constitutionalism")
95. id. at 31 ("[a]s a general matter, administrative constitutionalism is both the primary means by which social movements interact with the state and the primary means by which governmental actors deliberate about how to respond to social movement demands or needs.")
96. id. at 33 ("What we are calling administrative constitutionalism is the process by which legislative and executive officials... advance new fundamental principles and policies.").
97. Anjali Dalal, Administrative Constitutionalism and the Re-Entrenchment of Surveillance Culture 14 (unpublished manuscript) (on file with author).
98. Id. at 27-29 (identifying the current "surveillance culture [as] the product of an FBI motivated by a powerful mandate and protected by the medieval structure of bureaucracy," with path dependency and historical practice serving to entrench the resultant administratively developed norms despite a lack of broader deliberation).
99. See Ackerman, supra note 36, at 87-116 (discussing presidential claims to greater power under the Constitution, focusing in part on OLC and the "torture memos" episode)
100. Michael J. Glennon, The Cost of "Empty Words": A Comment on the Justice Department's Libya Opinion, HARV. NAT'L SEC. J.F. 1, 18 (2011), http://harvardnsj.org/2011/04/the-cost-of-empty-words-a-comment-on-the-justice-departments-libya-opinion/ (arguing that OLC is not an "impartial, objective, independent arbiter of the Constitution," but rather an advocate for the President and his policies)
101. Peter M. Shane, Executive Branch Self-Policing in Times of Crisis: The Challenges for Conscientious Legal Analysis, 5 J. NAT'L SECURITY L. & POL'Y 507, 515 (2012) (observing that the "process of securing legal analysis [from OLC] after September 11 was anything but balanced, dispassionate, and multivocal").
102. For a more optimistic view, arguing that executive constitutionalism is not so fundamentally compromised as to demand drastic institutional overhaul, see Morrison, Alarmism, supra note 36, at 1692-1693.
103. Eskridge and Ferejohn themselves acknowledge that "administrative constitutionalism often goes off track" and detail several examples. Eskridge & Ferejohn, supra note 15, at 305, 314-315, 350-358 (identifying the development of the U.S. monetary system and antihomosexual constitutionalism as instances of "administrative constitutionalism gone wrong")
104. see also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 508-510 (2009) (noting the FCC's narrowing of its protection for the broadcast of expletives)
105. Lee, supra note 4, at 855 (describing the Federal Power Commission's lack of interest in advancing broad constitutional arguments for the agency's power to combat discrimination).
106. Fox Television Stations, Inc., 556 U.S. at 553-56 (Breyer, J., dissenting) (contending that the FCC's explanation for the change in its view of the constitutionality of its "fleeting expletive[s]" policy is inadequate in light of First Amendment censorship concerns)
107. R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1219, 1222 (D.C. Cir. 2012) (holding that the FDA failed to meet its burden so as to justify restricting commercial speech by not providing a "shred of evidence" showing why graphic warnings on cigarette packages would advance the FDA's interest in reducing the number of smokers).
108. See, e.g., Allen v. Wright, 468 U.S. 737, 739-40 (1984) (dismissing for lack of standing a suit alleging the IRS did not adopt sufficient standards to deny tax-exempt status to private schools that racially discriminated)
109. Adams v. Richardson, 356 F. Supp. 92, 95 (D.D.C. 1973) (finding that out of 113 school districts who reneged on their desegregation plans or were otherwise out of compliance with Title VI in 1970-1971, the Department of Health, Education, and Welfare failed to take enforcement action against 74 of them).
110. Eskridge & Ferejohn, supra note 15, at 313-348.
111. Id. at 10-11
112. see also Balkin, supra note 30, at 5 (describing the creation of key federal departments, the Administrative Procedure Act, the Federal Reserve Act, and other measures as "state-building constructions" (internal quotation marks omitted)).
113. Karen M. Tani, Welfare and Rights Before the Movement: Rights as a Language of the State, 122 YALE L.J. 314, 320-323 (2012).
114. Mashaw, Creating, supra note 17, at 285.
115. Id. at 7-10, 309-312.
116. See Metzger, Ordinary Administrative Law, supra note 20, at 484-485.
117. Id. at 491.
118. See Emily S. Bremer, The Unwritten Administrative Constitution, FLA. L. REV. (forthcoming 2013) (manuscript at 32-35), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2143161## (highlighting administrative common law's role in defining the function of administrative agencies)
119. Metzger, Embracing, supra note 19, at 1339 ("Requiring agencies to offer contemporaneous explanations and justifications for their decisions creates internal checks on arbitrary agency action, encouraging agencies to take evidence and expertise into account and fostering internal deliberation.")
120. Metzger, Ordinary Administrative Law, supra note 20, at 491-492 (explaining that constitutionally inspired constraints on agency action lead to better documented and more "technocratic" decisionmaking).
121. See Metzger, Ordinary Administrative Law, supra note 20, at 487-490 (discussing procedural due process, First Amendment licensing, and Bivens actions as examples).
122. 553 U.S. 723 (2008).
123. Id. at 766-767+783-787.
124. Eric Berger, Individual Rights, Judicial Deference, and Administrative Law Norms in Constitutional Decision Making, 91 B.U. L. REV. 2029+2032-2033+2038-2054 (2011).
125. Id. at 2036-3207.
126. Id. at 2058-2074.
127. Eskridge and Ferejohn's account often gives primacy of place to legislative actors, which would represent a third category. This category predominates in many accounts of constitutionalism outside the courts. See, e.g., Whittington, Constitutional Construction, supra note 30, at 225.
128. But Eskridge and Ferejohn overwhelmingly treat administrative and legislative constitutionalism in tandem, Eskridge & Ferejohn, supra note 15, at 33-34, and the administrative-judicial contrast is much more pronounced in scholarship on administrative constitutionalism.
129. See Philip Bobbitt, Constitutional Fate 7 (1982) (listing modes of constitutional argument).
130. See Young, supra note 15, at 412 (describing these three functions as core aspects of a constitution).
131. The literature on the impact of judicial review on administrative decisionmaking abounds. For a survey, see Peter L. Strauss, et al., GELLHORN AND BYSE'S ADMINISTRATIVE LAW: CASES AND COMMENTS 1006-13, 1042-1047 (11th ed. 2011).
132. See Lee, supra note 4, at 801-802, 815-816, 870-872, 875-880 (describing incidents where an administrative agency selectively ignored or resisted unfavorable judicial precedent).
133. Metzger, Ordinary Administrative Law, supra note 20, at 507.
134. Eskridge & Ferejohn, supra note 15, at 6-9.
135. Eskridge and Ferejohn are more complicated on this question than this description suggests because they differentiate themselves from scholars such as Bruce Ackerman, who argues that some major political developments represent constitutional moments and serve to alter the Constitution itself. See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 266-94 (1991)
136. Bruce Ackerman, WE THE PEOPLE: TRANSFORMATIONS 6-31 (1998).
137. By contrast, Eskridge and Ferejohn state that they "do not see the legal cogency or the political wisdom of routinely converting landmark legislation into Constitutional obligation," and insist that it should remain subject to repeal though ordinary law mechanisms. Eskridge & Ferejohn, supra note 15, at 64.
138. On the other hand, they also suggest that small "c" constitutional measures should get special treatment in other respects, for example by being construed liberally
139. id. at 465-468
140. Young, supra note 15, at 452 (noting this aspect of their approach).
141. Young, supra note 15, at 414, 454.
142. Metzger, Ordinary Administrative Law, supra note 20, at 512-519.
143. Recently, Richard Primus has argued for erasing the constitutional-ordinary divide further, contending that "we should think of [constitutionality]... as a bundle of sticks that can be separated from one another, or that can be recombined in varying configurations." Richard Primus, Unbundling Constitutionality, 80 U. CHI. L. REV. (forthcoming 2013) (manuscript at 3-4), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2220995.
144. On his view, "[n]o single attribute of constitutionality characterizes every rule that mainstream American practice calls 'constitutional'" and "no attribute associated with constitutionality... is either necessary or sufficient for a rule's exhibiting any other characteristic of constitutional rules."
145. Id. at 4.
146. See Eskridge & Ferejohn, supra note 15, at 17-18, 24, 166-167 (describing administrators as engaged in a process of developing and entrenching new constitutional understandings).
147. Whittington, Constructing, supra note 30, at 120.
148. Whittington, Constitutional Construction, supra note 30, at 6.
149. Balkin, supra note 30, at 4-5.
150. See Lawrence B. Solum, The Interpretation-Construction Distinction, 27 CONST. COMMENT. 95+100-108 (2010), for a clear and more precise discussion of the difference between interpretation and construction.
151. Balkin, supra note 30, at 17.
152. Id. at 5.
153. David L. Franklin, Popular Constitutionalism as Presidential Constitutionalism?, 81 CHI.-KENT L. REV. 1069, 1074 (2006)
154. see also Pozen, supra note 32, at 2059 ("Presidential rhetoric about the proper role of judges, newspaper editorials blasting the latest Supreme Court decision, street protests about social conditions-each of these acts may be of constitutional dimension.").
155. See generally Whittington, Constitutional Construction, supra note 30 (analyzing the impeachments of President Andrew Johnson and Associate Justice Samuel Chase, the nullification crisis, and the Watergate crisis as instances of constitutional construction).
156. See Richard H. Fallon, Jr., IMPLEMENTING THE CONSTITUTION 5-7, 37-41 (2001) (citing examples of overenforcement-the requirement of Miranda warnings-and underenforcement-the "some evidence" standard of due process-of the Constitution's meaning as proper implementations of the Constitution)
157. Mitchell N. Berman, Constitutional Decisional Rules, 90 VA. L. REV. 1, 9, 88-100 (2004) (discussing the legitimacy of "constitutional decision rules" and what criteria should be used in creating them)
158. Henry P. Monaghan, The Supreme Court, 1974 Term- Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 2-3, 19-23 (1975) ([A] surprising amount of what passes as authoritative constitutional 'interpretation' is best understood as something of a quite different order-a substructure of substantive, procedural, and remedial rules drawing their inspiration and authority from, but not required by, various constitutional provisions").
159. Also see Metzger, Ordinary Administrative Law, supra note 20, at 505-512, for another example-administrative law-which I have argued is a form of judicially created constitutional common law.
160. Compare Whittington, Constitutional Construction, supra note 30, at 5-9
161. (describing constitutional interpretation and construction as distinct activities), and Solum, supra note 85, at 95 (arguing that "[t]he interpretation-construction distinction is both real and fundamental")
162. Balkin, supra note 30, at 4-5 (distinguishing ascertainment of the meaning of constitutional language and constitutional construction as two different forms of constitutional interpretation)
163. Fallon, supra note 90, at 5-7 (describing specification of constitutional meaning and crafting of constitutional doctrine as linked aspects of constitutional implementation).
164. My own view, which will have to await further elaboration elsewhere, is that in contexts of actual constitutional challenges, determining the linguistic meaning of constitutional text often involves consideration of factors frequently identified with construction, such as norms, existing doctrine, and practical implications. Put somewhat differently, on constitutional questions that matter and are the subject of debate, interpretation and construction are rarely easily distinguishable.
165. Andrew B. Coan, The Irrelevance of Writtenness in Constitutional Interpretation, 158 U. PA. L. REV. 1025, 1029-30, 1071-1083 (2010) (arguing that identifying "interpretation" as a distinct activity keyed to the constitutional text represents an effort to push originalism by definition).
166. Balkin, supra note 30, at 298.
167. See supra notes 1-3 and accompanying text.
168. Lee, supra note 4, at 883.
169. id. at 824-833 (discussing constitutional arguments to adopt equal employment policies made in an FCC 1963 memo that were omitted in its 1968 order and proposed rulemaking).
170. See Berger, supra note 69, at 2038-2047 (referencing multiple cases with constitutional underpinnings where the Supreme Court deferred to administrative agencies and other governmental actors)
171. Metzger, Embracing, supra note 19, at 1316-1317 (discussing the reluctance of the courts to recognize their reliance on administrative common law)
172. Metzger, Ordinary Administrative Law, supra note 20, at 506 ("[T]he Court rarely discusses the constitutional underpinnings of ordinary administrative law doctrines in any detail, and today often makes no reference whatsoever to the constitutional dimensions of its administrative law decisions.").
173. Eskridge & Ferejohn, supra note 15, at 7, 16-17, 23.
174. id. at 7, 33, 107-111 (arguing that "entrenching deliberation occurs over a long period of time, and the norm does not stick in our public culture until former opponents agree that the norm is a good one").
175. Balkin, supra note 30, at 298-299
176. Whittington, Constitutional Construction, supra note 30, at 15 ("Few political movements achieve 'overnight success,' and a low-level conflict over constitutional meaning may persist for years before culminating in a decisive construction.").
177. See Lee, supra note 4, at 886 (acknowledging the dearth of knowledge with respect to the "principles and forces" that guide administrative constitutionalism).
178. Eskridge & Ferejohn, supra note 15, at 303
179. see also Lee, supra note 4, at 804 ("[A]dministrative constitutionalism is likely a recurring aspect of the modern American state.").
180. See Eskridge & Ferejohn, supra note 15, at 34 (criticizing popular constitutionalism for omitting administrative agencies from its theories)
181. Lee, supra note 4, at 807-809 (remarking that both popular constitutionalists and departmentalists have failed to consider administrative constitutional interpretation).
182. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) ("It is axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress."). For a discussion of this basic precept, see generally Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097 (2004).
183. For criticism of administrative law's emphasis on delegation as essential to legitimacy, see William H. Simon, Democracy and Organization: The Further Reformation of American Administrative Law 7-11 (Columbia Law Sch. Pub. Law & Legal Theory Working Paper Grp., Paper No. 12-322, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2175121.
184. Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979).
185. 343 U.S. 579 (1952).
186. Id. at 582, 585.
187. Debates surrounding the scope of agency authority center on discerning the extent of an agency's delegated authority and the proper scope of Chevron deference, not on assessing whether agencies possess any inherent power.
188. See, e.g., United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) (tying applicability of Chevron deference to whether Congress delegated authority to issue rules with the force of law to the agency).
189. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
190. see also Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (requiring the court to determine that an agency decision was "based on a consideration of the relevant factors").
191. See Metzger, Ordinary Administrative Law, supra note 20, at 523.
192. id. (arguing that the more usual context will be those where agency regulation may be less effective because of constitutional considerations).
193. Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 ADMIN. L. REV. 501, 505, 508 (2005) [hereinafter Mashaw, Norms].
194. Metzger, Ordinary Administrative Law, supra note 20, at 523.
195. See Lee, supra note 4, at 816 (describing "FCC attorneys' constitutional theories" that "creatively expanded Supreme Court doctrine" by ignoring limiting language and by "relying on loosely relevant precedent").
196. Mashaw, Norms, supra note 111, at 508.
197. See McCarthy v. Madigan, 503 U.S. 140, 147-48 (1992) (noting the constitutionality exception to exhaustion); see also 2 RICHARD J. PIERCE, ADMINISTRATIVE LAW TREATISE § 15.5 (5th ed. 2010) (discussing inconsistent case law on whether presence of a constitutional claim precludes exhaustion requirements).
198. California has gone further, adopting a constitutional provision that prohibits state agencies from refusing to enforce a statute on the grounds that the statute is unconstitutional absent a determination to that effect by an appellate court. CAL. CONST. art. III, § 3.5
199. see also Lockyer v. City & Cnty. of S.F., 95 P.3d 459, 473-74 (Cal. 2004) (applying the same rule to local public officials).
200. Mashaw, Norms, supra note 111, at 508.
201. see Pillard, supra note 41, at 717 (noting the aggrandizement concern).
202. This claim represents an instance of what Daryl Levinson has called empire-building arguments. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915, 917 (2005) (describing "empire-building" as "government behavior... driven by selfaggrandizing motives").
203. H. Jefferson Powell, The Executive and the Avoidance Canon, 81 IND. L.J. 1313, 1317 (2006) (criticizing the executive branch assertion of the constitutional avoidance canon on Article II grounds as an instance of "loaded dice")
204. Morrison, Avoidance, supra note 41, at 1229-1237 (denying that self-protective executive branch assertions of the canon are inherently problematic, yet acknowledging they should trigger "special scrutiny"), and Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200-01 (1994), http://www.justice.gov/olc/nonexcut.htm (arguing that the President should construe statutes to be constitutional and "has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency").
205. See Thomas W. Merrill, Preemption and Institutional Choice, 102 NW. U. L. REV. 727, 755-757 (2008) [hereinafter Merrill, Institutional Choice] (arguing that agencies are often focused on specific federal regulatory schemes, lack knowledge of constitutional federalism principles, and may be biased in favor of exclusive federal regulation).
206. Mashaw, Norms, supra note 111, at 508.
207. Morrison, Avoidance, supra note 41, at 1223.
208. For a more sustained defense of the importance of judicial resolution of constitutional questions and judicial supremacy, see generally Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359 (1997).
209. Eskridge & Ferejohn, supra note 15, at 305-306 (emphasis omitted).
210. Id. at 307-308.
211. Dalal criticizes administrative constitutionalism on different but related grounds, contending that agencies are too insular and unaccountable to serve as primary norm entrepreneurs absent congressional oversight, judicial review, or substantial internal checks, which in the national security context are often lacking. See Dalal, supra note 52, at 29-40.
212. U.S. CONST. art. II, § 3.
213. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2272-2274, 2306-2309 (2001) (describing obstacles to close presidential control and detailing expansion of oversight as well as continuing limits under President Clinton).
214. See David Schoenbrod, Power Without Responsibility: How Congress Abuses The People Through Delegation 155-58 (1993) (arguing that delegation in the modern administrative state goes against the structure of the Constitution and the intent of the Framers because it involves transferring legislative authority to an entity other than Congress)
215. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1237-1241 (1994) (detailing the demise of the nondelegation doctrine and the Court's willingness to allow broad delegation to administrative agencies due to the complexity of the modern state).
216. See William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1172-1175 (2008) (contrasting agencies' expertise in statutory schemes and industry knowledge with agencies' imperfect understanding of constitutional law, which often leads to a disregard of constitutional principles)
217. Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 779-787 (2004) (emphasizing agencies' general lack of expertise and competency on constitutional questions).
218. See Merrill, Institutional Choice, supra note 120, at 755-756 (noting "[o]n constitutional variables... agencies clearly fall short" and "know little about constitutional law")
219. see also Neal Devins & Michael Herz, The Uneasy Case for Department of Justice Control of Federal Litigation, 5 U. PA. J. CONST. L. 558, 571-577 (2003) (describing and critiquing this argument as a defense of DOJ control of federal government litigation). I have argued that administrative officials may be more sensitive to federalism and state interests than is generally assumed, given their frequent dependence on, and connection to, state regulators.
220. See Gillian E. Metzger, Administrative Law as the New Federalism, 57 DUKE L.J. 2023, 2072-2076 (2008) [hereinafter Metzger, New Federalism].
221. See Michael Herz, Purposivism and Institutional Competence in Statutory Interpretation, 2009 MICH. ST. L. REV. 89, 104-105 (2009) (explaining that "[a]n agency has a specialized mission" that the agency staff is committed to and that this creates "a significant concern about agencies going too far in pursuit of statutory goals").
222. See Eskridge & Ferejohn, supra note 15, at 8-9 (describing administrative reliance on the Large "C" Constitution).
223. City of Arlington, Tex. v. FCC, Nos. 11-1545 & 11-1547, slip op. at 16-17 (May 20, 2013) (holding that a court must defer to an agency's interpretation of an ambiguous statutory provision concerning the scope of the agency's authority).
224. Metzger, Embracing, supra note 19, at 1295.
225. Id. at 1342-1343.
226. See Mashaw, Norms, supra note 111, at 508 (arguing that when agencies avoid constitutional questions, it prevents courts from exercising their constitutional duty to adjudicate those questions).
227. Strauss, supra note 17, at 579.
228. See, e.g., Chevron, 467 U.S. at 844 (stating that "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency").
229. I thank David Pozen for this point.
230. See, e.g., Chevron, 467 U.S. at 865-866 (noting that "[j]udges are not experts in the field," whereas agencies are, and that agencies are in a better position to balance conflicting policy interests).
231. Metzger, Ordinary Administrative Law, supra note 20, at 533.
232. Kenneth A. Bamberger, Normative Canons in the Review of Administrative Policymaking, 118 YALE L.J. 64, 96 (2008).
233. Eskridge & Ferejohn, supra note 15, at 30-32.
234. E.g., Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 137-38 (1976)
235. Geduldig v. Aiello, 417 U.S. 484, 496-97 (1974).
236. Eskridge & Ferejohn, supra note 15, at 47-48, 56.
237. Metzger, Ordinary Administrative Law, supra note 20, at 523.
238. Morrison, Avoidance, supra note 41, at 1222
239. see also Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71, 92-93 (making this criticism of the constitutional avoidance canon generally).
240. Kent Greenawalt, Statutory And Common Law Interpretation 149-51 (2013)
241. Peter L. Strauss, When the Judge is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 CHI.-KENT L. REV. 321, 346-351 (1990).
242. See Metzger, Embracing, supra note 19, at 1322-1323 (emphasizing the impediments to congressional action that lead to broad delegations)
243. cf. Daniel J. Meltzer, The Supreme Court's Judicial Passivity, 2002 SUP. CT. REV. 343+386 (noting the limitations on Congress's ability to specify answers to questions created by a given statutory scheme in advance).
244. see Daniel B. Rodriguez & Barry R. Weingast, Is Administrative Law Inevitable? 29 (Mar. 9, 2009) (unpublished manuscript), http://escholarship.org/uc/item/6mx3s46p (arguing that Congress frequently imposes detailed procedural constraints on agencies).
245. See generally Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1695-1697 (1975) (offering different accounts of why Congress delegates).
246. See Schoenbrod, supra note 128, at 158 (acknowledging that broad delegation of lawmaking power to agencies has become entrenched in both jurisprudence and scholarship despite strong historical and structural arguments that such delegation is unconstitutional).
247. Metzger, Ordinary Administrative Law, supra note 20, at 522 (footnote omitted).
248. Merrill, Institutional Choice, supra note 120, at 755-756
249. cf. Metzger, Ordinary Administrative Law, supra note 20, at 526 (noting that administrative constitutionalism only requires that agencies take seriously the constitutional concerns involved, not that these concerns necessarily trump other factors).
250. See Dalal, supra note 52, at 14-23 (describing how free speech constraints have been loosened in allowing the unregulated expansion of the FBI's mission, the FBI's use of questionable methods, and the FBI's use of an intelligence-gathering process "cloaked in secrecy")
251. Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. REV. 1559, 1567-1573 (2007) (detailing flaws in OLC's Torture Memo, including its assessment of the President's commander in chief power).
252. See Lee, supra note 4, at 813-817, 824-827 (describing efforts by FCC and other executive branch attorneys to read equal protection requirements more broadly than existing doctrine required)
253. Metzger, New Federalism, supra note 130, at 2078-2079 (noting that agencies have often denied that their decisions preempt state law and arguing that public choice accounts of agencies seeking to maximize their power are too simplistic).
254. See, e.g., Eskridge & Ferejohn, supra note 15, at 31-33 (detailing support for broad equal protection readings from EEOC attorneys seeking to advance women's equality)
255. Lee, supra note 4, at 813-817, 827-828 (describing different arguments for broad equal protection readings offered by the FCC attorneys and the FCC Commissioners).
256. See Dalal, supra note 52, at 35-39 (examining the lack of meaningful judicial intervention in cases dealing with national security issues because of limited judicially enforceable rights, standing hurdles, and the growth of the executive privilege)
257. A Pillard, supra note 41, at 692 (highlighting the courts' deferential approach to cases involving foreign policy, national security, the military, and immigration).
258. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009) (noting the availability of a direct constitutional challenge)
259. Metzger, Ordinary Administrative Law, supra note 20, at 526 (noting that courts may invalidate administrative actions as unconstitutional).
260. The availability of judicial review may have an indirect policing effect as well, by making agencies unwilling to run too close to the constitutional line for fear of reversal. For the classic account of agency fear of reversal and timidity in the face of judicial review, see Jerry L. Mashaw & David L. Harfst, THE STRUGGLE FOR AUTO SAFETY 225-226 (1990).
261. See Johnsen, supra note 153, at 1564 (emphasizing the limits of ex post external constraints on the executive branch and thus the need for effective internal constraints).
262. Morrison, Avoidance, supra note 41, at 1222.
263. Dalal suggests that over time administrative constitutionalism can have a corrosive effect on the scope of constitutional protections when agencies narrow their understanding of constitutional rights, but, as she acknowledges, the national-security context she analyzes is also one of limited judicial receptivity to constitutional challenges. Dalal, supra note 52, at 35-39.
264. It is difficult to know whether the administrative and judicial resistance to the Fourth Amendment rights at issue are endogenous or exogenous phenomena; it seems at least as possible that lack of judicial receptivity emboldened agencies' narrowing approaches as vice versa.
265. Id. at 40 (asserting that lack of oversight by other branches of the government, including the judiciary, "allowed for the insular agency decision-making and the norm entrenchment that followed").
266. See Heckler v. Chaney, 470 U.S. 821, 831 (1985) (holding that executive branch nonenforcement decisions are presumptively unreviewable).
267. Mashaw, Norms, supra note 111, at 508.
268. This dynamic is evident in several recent decisions where the Supreme Court appeared to scrutinize administrative decisions more rigorously because of their federalism implications. See Metzger, New Federalism, supra note 130, at 2048-2069+2109 (arguing that these recent cases indicate that the Court may "[be using] administrative law as a vehicle for addressing federalism concerns").
269. But see Metzger, Ordinary Administrative Law, supra note 20, at 500-502 (noting that courts rarely expressly acknowledge using ordinary administrative law to encourage administrative attention to constitutional concerns).
270. Cf. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1226-1227 (1978) (arguing that "judicially underenforced constitutional norms should be regarded as legally valid to their conceptual limits" rather than being only valid to the extent they are enforced by the courts, and that "public officials have an obligation in some cases to regulate their behavior by standards more severe than those imposed by the federal judiciary").
271. See, e.g., Balkin, supra note 30, at 17 ("Much of the most important constitutional work does not come from courts. It comes from acts of constitutional construction by executive officials and legislatures.")
272. Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 YALE L.J. 1943, 1966-1971 (2003) (emphasizing the institutional differences between congressional and judicial constitutional interpretation)
273. Keith E. Whittington, Extrajudicial Constitutional Interpretation: Three Objections and Responses, 80 N.C. L. REV. 773, 848 (2002) ("The courts are not the exclusive interpreters of the Constitution, and often are not its ultimate or most authoritative interpreters either The authority to interpret the Constitution is shared by multiple institutions and actors within our political system, and tends to flow among them over time.").
274. For descriptions and defenses of "living constitutionalism," see sources cited supra note 32.
275. For a critique of the weight ascribed to free-floating values and general principles in judicial constitutional analysis, see John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 HARV. L. REV. 2003, 2008 (2009), in which Professor Manning writes, "When judges enforce freestanding 'federalism,' they ignore the resultant bargains and tradeoffs that made their way into the [text of the Constitution]."
276. See Metzger, Embracing, supra note 19, at 1297, 1343-1348 (arguing that "administrative common law represents a legitimate instance of judicial lawmaking").
277. Metzger, Ordinary Administrative Law, supra note 20, at 531-533.
278. Eskridge & Ferejohn, supra note 15, at 12-18, 27.
279. See Balkin, supra note 30, at 19.
280. See generally Barry Friedman, The Will Of The People: How Public Opinion Has Influenced The Supreme Court And Shaped The Meaning Of The Constitution (2009).
281. For a traditional image of the courts, see generally J.W. PELTASON, Fifty-Eight Lonely Men: Southern Federal Judges And School Desegregation 134 (Illini Books 1971) (1961).
282. See Christopher L. Eisgruber, Dimensions of Democracy, 71 FORDHAM L. REV. 1723, 1733 (2003) (noting that judges "serve long terms that may attenuate their connection to public opinion and popular judgments about justice").
283. This is not to suggest that administrative interactions are evenhanded, or that the public broadly is engaged in agency decisionmaking. Recent scholarship has highlighted problems on both scores. See Nina A. Mendelson, Foreword: Rulemaking, Democracy, and Torrents of E-mail, 79 GEO. WASH. L. REV. 1343, 1345-1347 (2011) (criticizing agencies for discounting mass public comments on matters of broad public policy in rulemaking proceedings)
284. Wendy Wagner et al., Rulemaking in the Shade: An Empirical Study of EPA's Air Toxic Emission Standards, 63 ADMIN. L. REV. 99, 103-04, 151 (2011) (finding empirical evidence that "at least some publicly important rules that emerge from the regulatory state may be influenced heavily by regulated parties, with little to no counterpressure from the public interest").
285. See Metzger, Interdependent, supra note 35, at 427-432 (explaining the significance of these internal checks within the executive branch).
286. See Strauss et al., supra note 75, at 926-938, 976-1010 (discussing the reasoned decisionmaking requirements applied to agency actions).
287. See supra text accompanying notes 83-92
288. see also Pozen, supra note 32, at 2060 ("This willingness to expand the horizons of the constitutional raises an identification problem: How do we distinguish genuine popular constitutionalism from simulacra or impostors thereof, 'judgment[s] about constitutional meaning' from 'policy-driven, constitution-blind' acts of opportunism or reform?")
289. Young, supra note 15, at 448-455 (identifying this line-drawing difficulty as the rule-of- recognition problem).
290. Young, supra note 15, at 454
291. see also Balkin, supra note 30, at 300 ("In sum, it is best not to worry too much about where constitutional construction leaves off and merely ordinary politics begins. The key point, instead, is to recognize how practices within the constitutional scheme can subtly adjust the scheme itself in addition to the formal processes of constitutional amendment.").
292. Balkin, supra note 30, at 311-312
293. Young, supra note 15, at 454
294. see also Whittington, Constitutional Construction, supra note 30, at 15 (stating that arguments concerning constitutional construction "never leave the realm of politics" and that even accepted constructions "are subject to future political struggle").
295. Whittington, Constitutional Construction, supra note 30, at 5-6 (juxtaposing the concepts of constitutional interpretation and constitutional construction and arguing that the latter is "essentially [a] political task, regardless of the particular institution exercising that function, to construct a determinate constitutional meaning to guide government practice").
296. But cf. Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 HARV. L. REV. 411, 438-447 (2012) (demonstrating how the "Madisonian conception" of interbranch competition fails to account for Congress's failure to systemically defend legislative authority against executive encroachment).
297. Metzger, Embracing, supra note 19, at 1356.
298. See Implementation of the Fair Housing Act's Discriminatory Effects Standard, 78 Fed. Reg. 11,460, 11,460-61 (Feb. 15, 2013) (to be codified at 24 C.F.R. pt. 100) (noting that in adopting the final rule it was "formaliz[ing] its long-held recognition of discriminatory effects liability under the [FHA]" and implementing a burden-shifting test to ensure consistent application of the rule).
299. 557 U.S. 557 (2009).
300. Id. at 584, 593
301. id. at 594-595 (Scalia, J., concurring) (discussing the claimed constitutional violation)
302. Primus, supra note 10, at 1354-1362 (detailing the constitutional dimensions of Ricci).
303. See, e.g., Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 HARV. L. REV. 493, 495 (2003) (noting that one "issue was whether federal statutes prohibiting facially neutral practices with racially disparate impacts were valid... as means of enforcing equal protection under Section 5 of the Fourteenth Amendment").
304. See generally Johnson, supra note 10 (broadly discussing the problem of racial segregation in housing and proposed strategies to achieve greater integration).
305. The Supreme Court recently sought the views of the Solicitor General on the question of whether the FHA embodies a discriminatory impact standard. Twp. of Mount Holly v. Mount Holly Gardens Citizens in Action, Inc., 133 S. Ct. 569 (2012). The term before it had granted certiorari on a case presenting the same question, but the case was dismissed on the parties' request. Magner v. Gallagher, 132 S. Ct. 1306 (2012).
306. Metzger, Ordinary Administrative Law, supra note 20, at 484-486.
307. Congress and the President could similarly require greater public administrative engagement with constitutional concerns. See, e.g., Catherine M. Sharkey, Inside Agency Preemption, 110 MICH. L. REV. 521, 570-572 (2012) (suggesting mechanisms to ensure better administrative attention to federalism impacts from preemption).
308. Metzger, Ordinary Administrative Law, supra note 20, at 484-486.
309. See Young, supra note 15, at 452 (suggesting that there should not be a dichotomy "between 'the higher lawmaking' entailed in the Constitution and 'ordinary lawmaking' entailed in statutes").
310. Id. at 467-470. Professor Young argues: [F]irst,... where a statutory scheme plays a constitutive role in the constitutional structure, courts should not hesitate to employ normative canons of statutory construction that reflect the constitutional values underlying the relevant aspect of the structure. Second, courts should be reluctant to accord... deference to statutory interpretations by administrative agencies where the statute in question plays a constitutive role.
311. Id. at 467.
312. Eskridge & Ferejohn, supra note 15, at 24.
313. Id. at 434-436, 445-447 ("[L]egislative and administrative constitutionalism does play and ought to play a critical role in the operation of judicial Constitutionalism.").
314. See Metzger, Ordinary Administrative Law, supra note 20, at 490 (explaining how an administrative statute's-the APA's-prohibition on arbitrary and capricious agency action provides a basis for judicial scrutiny of agency decisions)
315. id. at 496 (explaining the Supreme Court's strong presumption that Congress intended judicial review of administrative decisionmaking and how that presumption is rooted in constitutional due process and separation of powers).
316. See William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 635-640 (1992) (noting the unacknowledged countermajoritarian effects of this kind of back-door constitutionalization)
317. see also Schauer, supra note 147, at 92-96 (emphasizing the constraints on the political branches from the canon of constitutional avoidance).
318. 132 S. Ct. 2566 (2012).
319. Id. at 2642, 2650-2656, 2668 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) (interpreting the individual mandate to not be a tax and arguing that the only proper response was to invalidate the Affordable Care Act in toto, rather than sever those parts that were unconstitutional)
320. see Gillian E. Metzger & Trevor W. Morrison, The Presumption of Constitutionality and the Individual Mandate, in THE HEALTH CARE CASE: THE SUPREME COURT'S DECISION AND ITS IMPLICATIONS (Nathaniel Persily et al. eds., forthcoming 2013) (manuscript 1-3) (on file with author) (noting the interaction of statutory construction and constitutional implementation in the decision and the impact of different statutory construction approaches to constitutional principles).
321. NFIB, 132 S. Ct. at 2593-2600.
322. Interestingly, the Chief Justice took a narrower approach to the canon than is currently the norm, concluding that the measure otherwise actually would be unconstitutional, suggesting his approach was more straightforwardly constitutional and less a blending of constitutional and ordinary law approaches.
323. Id. at 2600-2601.
324. See John F. Manning, Clear Statement Rules and the Constitution, 110 COLUM. L. REV. 399, 425 (2010) (explaining how clear statement rules, by placing an emphasis on additional clarity, can effectively impose a judicial tax on the legislative branch, if that branch wishes to pass legislation to "achieve a constitutionally disfavored result").
325. See Metzger, Ordinary Administrative Law, supra note 20, at 532-533 (citing less burdensome procedural requirements and unity of purpose among agency personnel as reasons agencies better respond to judicial reversal).
326. Franklin, supra note 88, at 1074-1075.
327. See Balkin, supra note 30, at 3-7 (arguing that fidelity to the Constitution requires "fidelity to the original meaning of the Constitution, and in particular, to the rules, standards, and principles stated by the Constitution's text," but not original expected applications)
328. Whittington, Constructing, supra note 30, at 120-22, 133-135 (defining interpretation as a process that attempts to "divine the meaning of the text" and is intended to be enduring, and emphasizing how an originalist approach to constitutional interpretation accords with recognition of constitutional construction).