Ordinary Administrative Law as Constitutional Common Law
40 Pages Posted: 11 Oct 2009 Last revised: 2 Nov 2009
Date Written: October 6, 2009
Last term, in Federal Communications Commission (FCC) v. Fox Television Stations, the Supreme Court expressly refused to link ordinary administrative law to constitutional concerns, insisting that whether an agency action is “arbitrary and capricious” and whether it is unconstitutional are separate questions. In this article, I argue that Fox is wrong. The Court’s protestations aside, constitutional law and ordinary administrative law are inextricably linked, with the result that a fair amount of ordinary administrative law qualifies as what Henry Monaghan famously termed constitutional common law. Its doctrines and requirements are constitutionally informed but rarely constitutionally mandated, with Congress and agencies enjoying broad power to alter specific administrative mechanisms notwithstanding their constitutional aspect.
Recognizing the interrelationship between constitutional law and ordinary administrative law is important both for the ongoing debate over the legitimacy of constitutional common law and for proper appreciation of the role administrative agencies can play in our constitutional order. Underlying many attacks on constitutional common law is a view of constitutional law as having a narrow and determinate scope, but the interwoven relationship between ordinary law and constitutional law in the administrative law context suggests this view of constitutional law is a false one. In addition, seeking to enforce constitutional norms through ordinary administrative law better accords with constitutional principles than efforts to segregate out the two and is likely to prove less intrusive to the policymaking prerogatives of the political branches. As a result, the better critique is not the extent to which constitutional common law surfaces in administrative contexts, but rather the lack of transparency that accompanies it.
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