The Administrative Constitution in Exile

Abstract

For decades, the aspiration of administrative law has been to develop legal structures that would constrain and legitimate the exercise of agency power. The fruition of that hope was the complex internal blueprint that has made modern administrative governance both successful and legitimate — the framework for executive action that many have hailed as the “administrative constitution.”

Today, however, novel exercises of administrative power are crowding out old and familiar varieties, making the conventional forms of administrative action less and less relevant to the conduct of government. This Article examines how the administrative constitution has changed over time and how that transformation can be better understood by reference to constitutional theory. Administrative law today confronts a conceptual choice similar to that faced by constitutional law in the wake of the New Deal: whether to treat fundamental constitutional change as exile or as evolution. When faced with that choice, living constitutionalists did not simply declare by fiat that the Constitution was “living.” Instead, they justified that assessment by explaining how democratically legitimate constitutional change occurs as a result of an entire system of constitutional construction working in concert — a system that includes courts, political parties, citizens, and social movements.

The problem for administrative law is that it lacks such an account of legitimate administrative constitutional evolution. The legal, political, and social mechanisms that ensure that the living Constitution is simultaneously robust, adaptable, and democratically legitimate apply much more weakly to the dynamics responsible for administrative constitutional change. Administrative law thus faces a daunting challenge: to ensure that administrative constitutional change itself occurs in a constrained and legitimate fashion. If that challenge is not met, we run the risk that we will be governed not by a robust and living administrative constitution, but by an administrative constitution “in exile.”

Keywords: APA, administrative law, administrative constitution, waiver, delay, constitutional change