A Critical Case Against Administrative Functionalism

Posted: 8 Nov 2022 Last revised: 18 Mar 2023

See all articles by Bijal Shah

Bijal Shah

Boston College Law School

Date Written: November 3, 2022


Scholarship in structural constitutionalism and administrative law discusses norms in narrow and limited ways. For some time, scholars have viewed structural constitutional provisions as unburdened by value judgments beyond indeterminate or originalist conceptions of liberty. Indeed, the normative commitments of the separation of powers are highly focused on how the founders conceived of power, and rarely prioritize societal, humane and equality-focused values. More specifically, the center of debates concerning structural constitutionalism is formalism. And functionalism is the response to formalism for those who value effectiveness, flexibility and outcomes above adherence to originalist or textualist principles.

This Article is not a critique of formalism, in the vein of recent scholarship that identifies the methodological and theoretical flaws in originalism and textualism. Rather, this Article takes aim at functionalism—but from a critical legal theorist, not formalist, perspective. Broadly, this Article begins the work of integrating the insights of critical theory into the separation of powers.

First, this Article applies legal realism to provide examples of how vulnerable communities have been harmed as it pertains to three significant aspects of functionalism: 1) administrative discretion under our functionalist nondelegation doctrine, 2) congressional oversight of administrative action under a functionalist understanding of the separation of the political branches, and 3) independence in administrative adjudication, fostered by the functional view that these administrators should be insulated from political influence. Second, this Article considers how to respond to this essential flaw of functionalism. The answer lies not in the formalist call to dismantle the administrative state. Rather, more modest shifts to the relationship between the constitutional branches and agencies might be beneficial.

Suggested Citation

Shah, Bijal, A Critical Case Against Administrative Functionalism (November 3, 2022). Ohio State Law Journal (Forthcoming), Available at SSRN: https://ssrn.com/abstract=4267302

Bijal Shah (Contact Author)

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

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