The Constitution and the Administrative State

We started the semester noting that everything that agencies do must be consistent with the Constitution. Nobody disputes that basic principle, but that is not to say that there is not disagreement about whether what agencies are doing is constitutional. In fact, many of the most important developments in the caselaw right now have to do with constitutional challenges to agency decisions, many of which have the potential to drastically change the administrative state or even eliminate it altogether.

These challenges levy a variety of claims: in some, agencies are simply acting in ways that flout basic constitutional rights, like the right to due process; in others, agencies are said to be structurally incompatible with principles like the separation of powers. You may or may not have been introduced to these concepts in a constitutional law class, but if not, worry not--studying administrative law is like the immersion method for studying contemporary constitutional law. Even when there is no actual constitutional challenge, ordinary administrative law often intersects with constitutional rights--take, for instance, a recent lawsuit asking courts to order FDA to withdraw approval for the drug mifepristone, which is used in medication abortion. See Alliance for Hippocratic Medicine v. FDA, No. 23-10362, 2023 WL 2913725 (5th Cir. Apr. 12, 2023).

This Section of the casebook does not, and could not, cover every past and current development in this area. For instance, right now there are two potentially very momentous cases scheduled to be decided by the Supreme Court in the October 2023 Term--one involving whether the Consumer Financial Protection Bureau's funding mechanism violates the appropriation power given to Congress, and the other involving whether the SEC's adjudication system violates the Seventh Amendment by denying jury trials to regulated parties. Instead, this Section of the casebook seeks to give you some illustrative cases that fit into three buckets: 1) challenges based on arguments that agencies violate the vesting of legislative power in Congress, 2) challenges based on arguments that agencies usurp some of the executive power from the President, and 3) challenges based on arguments that agencies exercise some of the judicial power, and that they violate due process norms in the process.

As you dive in, it is a good idea to keep a few points in mind. First, many of these disputes involve debates about the separation of powers, and these debates often turn on whether judges approach such questions through a formalist or functionalist lens. See John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939 (2011); Peter L. Strauss, A Softer Formalism, 124 Harv. L. Rev. F. 55 (2011). How clear do you find the relevant constitutional texts on the question facing the courts? Second, many of the challenges you will read about have at least the potential to render much of administrative law obsolete and to cause a massive reconceptualization of governance in the nation. How much should the far-reaching consequences of such a change weigh on judges as they contemplate constitutional questions?

These are important questions because, right now, the courts are engaged in far more aggressive constitutional review of administrative agencies than we have seen in some time. Some have described this as a "power grab." See Josh Chafetz, The New Judicial Power Grab, 67 St. Louis U. L.J. 635 (2023). Others have referred to this Court's approach as "imperial." See Mark A. Lemley, The Imperial Supreme Court, 136 Harv. L. Rev. F. 97 (2022). Others have seen parallels between the present moment and the New Deal era, when courts briefly resisted some of the innovations and growth of the administrative state that occurred during that period. See Gillian E. Metzger, 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1 (2017). Whatever you think about the merits of what the courts are doing, there is little doubt that the present moment involves a much more activist judicial approach to questions of the administrative state and the Constitution than we have seen for a very long time.

A third point is also worth keeping in the back of your mind. I have saved the important questions raised by these trends for the end of this class on the theory that you should know what the administrative state is and how it operates before assessing the merits of the constitutional challenges. One reason to insist on this is because much of ordinary administrative law--the stuff of the first three Sections of this casebook--can serve as a kind of surrogate for the Constitution. Consider as you read the cases in this Section whether the core concerns that you have about the administrative state--agency abuse of power, fairness to regulated parties, violation of law, erosion of democracy, or whatever--are adequately addressed by administrative procedures, political oversight of agencies, and ordinary statutory judicial review of agency decisions.