“Administrative Constitutionalism:” Considering the Role of Agency Decisionmaking in American Constitutional Development

Social Philosophy and Policy, forthcoming

George Mason Legal Studies Research Paper No. LS 20-07

27 Pages Posted: 6 May 2020

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School, Faculty

Date Written: May 4, 2020

Abstract

The last decade or so has seen an explosion of scholarship by American law professors on what has become known as administrative constitutionalism. Administrative constitutionalism is a catchphrase for the role of administrative agencies in influencing, creating, and establishing constitutional rules and norms, and governing based on those rules and norms. Though courts traditionally get far more attention in the scholarly literature and the popular imagination, administrative constitutionalism scholars show that administrative agencies have been extremely important participants in American constitutional development.

Part I of this article identifies three different versions of administrative constitutionalism — (1) Engagement with Existing Constitutional Doctrine; (2) Resolving Questions of Statutory Meaning that Implicate Constitutional Questions; and (3) Shadow Administrative Constitutionalism--and provides examples from the scholarly literature to illustrate these distinct manifestations of administrative constitutionalism.

Part II of this article discusses the normative turn in administrative constitutionalism scholarship. Much of this normative literature is implicitly or explicitly premised on the notion that agencies are more likely to pursue progressive goals than are other government actors.

Part III of this article disputes the notions that agency constitutional decisionmaking is “democratic” and that agencies are naturally inclined to serve progressive goals.

Finally, Part IV of this article notes that scholars who support broad agency autonomy to work out and enforce their own constitutional visions have failed to consider how their work fits in with the economic and political science literature on agency behavior. One can predict based on that literature that agencies given broad autonomy under the guise of administrative constitutionalism will primarily be inclined to expand their scope and authority at the expense of countervailing considerations.

Keywords: Administrative law, administrative agencies, constitutional law, democratic theory, legal history, public choice separation of powers

JEL Classification: K23, K19, K29

Suggested Citation

Bernstein, David Eliot, “Administrative Constitutionalism:” Considering the Role of Agency Decisionmaking in American Constitutional Development (May 4, 2020). Social Philosophy and Policy, forthcoming, George Mason Legal Studies Research Paper No. LS 20-07, Available at SSRN: https://ssrn.com/abstract=3592615

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8089 (Phone)
703-993-8202 (Fax)

HOME PAGE: http://mason.gmu.edu/~dbernste

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