Bertrall Ross

Embracing Administrative Constitutionalism

PUBLISHER
Boston University Law Review
DATE
2015
 

UVA Law Faculty Affiliations

Abstract

Administrative agencies engage in constitutionalism. They resolve questions of statutory meaning and scope that implicate constitutional questions. Even when agencies do not consciously set out to weigh in on constitutional questions, by interpreting and applying statutes that rest on constitutional values, agencies elaborate constitutional meaning. 

Should courts and theorists embrace or resist administrative constitutionalism? For those who believe that the courts are the exclusive and final interpreters of the Constitution, it seems natural to oppose it. Thus, over the past forty years, the Supreme Court has resisted administrative constitutionalism. When agencies elaborate constitutional meaning in their interpretation of statutes, the Court has denied them the deference ordinarily required by administrative law doctrine. 

In this Article, I argue that administrative constitutionalism should be embraced. The Constitution’s vague text must be adapted to changing societal contexts if it is to remain viable. Judicial constitutionalism has adapted the meaning of the Constitution to new societal contexts by adjusting constitutional principles derived from text. This form of constitutionalism, however, is limited in its capacity to update constitutional meaning. Justices are more than ever detached from the changing societal context, and the People lack the opportunity to engage in informed deliberation about the application of constitutional principles in these new contexts. 

Administrative constitutionalism offers a critical supplement to judicial constitutionalism in adapting the Constitution to changing societal contexts. When judicial and agency applications of constitutional principles coexist, a process that I call “constitutional experimentation” takes place. Experimentation advances constitutional adaptation by allowing the operative effects of various constitutional applications to be tested. The People can then pressure courts and agencies to adopt constitutional applications that best advance constitutional principles in particular societal contexts.

Citation

Bertrall Ross, Embracing Administrative Constitutionalism, 95 Boston University Law Review 519-586 (2015).
 

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