Administrative Constitutionalism and the Re-Entrenchment of Surveillance Culture

Abstract

Administrative constitutionalism is a recent theory of extra-judicial constitutionalism that studies the role of agencies on the front line of constitutional interpretation. In this role, agencies are constitutional norm entrepreneurs, suggesting constitutional norms and beginning a process of national deliberation that results in the entrenchment of norms that reflect the majority viewpoint. This Article challenges the assumption that agencies are appropriate constitutional norm entrepreneurs. Through a detailed historical study of the development and evolution of the Attorney General Guidelines, the governing document for the FBI, I demonstrate that without intervention, agencies are appropriate norm entrepreneurs only during rare constitutional moments, when the entire country is galvanized around a major reinterpretation of our framework of constitutional rights. Outside of these moments, the governmental machine is more insular than deliberative. This lack of deliberation implicitly grants agencies, the least accountable members of our tripartite government, the power to create and entrench constitutional norms that ultimately inform the development of constitutional law. However, structural interventions can be manufactured to force deliberation. In particular, stronger internal checks on the executive branch, congressional oversight, judicial intervention, and public accountability can force the deliberation necessary to ensure the legitimacy of administrative constitutionalism.

Keywords: administrative constitutionalism, surveillance, First Amendment, national security