The constitutional duty to supervise.

• Author: Metzger, Gillian E.
• Position: Introduction through I. The Mismatch of Constitutional Law and Government Reality C. Constitutional Law's Exclusion of Administration 2. Individual Rights a. Eighth Amendment and Due Process, p. 1836-1867

INTRODUCTION I. THE MISMATCH OF CONSTITUTIONAL LAW AND GOVERNMENTAL REALITY A. Administration and Supervision B. Administration's Contemporary Centrality 1. Privatization 2. Cooperative Federalism 3. Crisis Governance and Presidential Administration C. Constitutional Law's Exclusion of Administration 1. Structural Constitutional Law: Standing Doctrine and the Separation of Powers 2. Individual Rights: The Eighth Amendment, Due Process, and Restrictions on Liability for Failed Supervision a. Eighth Amendment and Due Process b. The Denial of Supervisor Liability D. Recurrent Themes E. Administrative Law and Systemic Administration II. RETHINKING ADMINISTRATION'S CONSTITUTIONAL STATUS: THE CONSTITUTIONAL DUTY TO SUPERVISE A. Article II and the Duty To Supervise 1. The Take Care Clause and the Textual Basis for a Duty To Supervise 2. Hierarchical Oversight and Article II 3. Hierarchical Oversight and Executive Branch Supervision in Practice B. Delegation, Accountability, and the Duty To Supervise 1. Delegated Authority and the Hierarchical Oversight Model 2. Supervision and Accountability of Delegated Authority 3. The Alternative of Judicial Review C. The Scope of the Duty To Supervise D. Judicial Enforceability and Judicial Supremacy 1. Article III and Political Question Barriers 2. Departmentalism in a World of Judicial Supremacy III. IMPLEMENTING THE CONSTITUTIONAL DUTY TO SUPERVISE A. Direct Judicial Enforcement 1. Privatization 2. Institutional Reform Litigation 3. Bivens and Duty-To-Supervise Claims B. Administrative Law and the Duty To Supervise 1. Federal-State Cooperative Programs 2. Crisis Governance 3. Presidential Administration C. The Duty To Supervise in the Political Branches CONCLUSION INTRODUCTION

The Internal Revenue Service (IRS) targets applications for nonprofit tax-exempt status by organizations using the name "Tea Party" for special scrutiny. (1) The National Security Agency (NSA) repeatedly violates governing privacy requirements and oversteps its authority in conducting surveillance. (2) Recently opened online federal health exchanges fail to function, preventing individuals from signing up for health insurance or determining their eligibility for benefits. (3) Officials at some Veterans Administration (VA) hospitals manipulate data to hide long delays in scheduling appointments, and there are allegations that some veterans died while on waiting lists. (4)

A key theme that links these examples is that they all involve managerial and supervisory failure. Most commonly, the problem is too little supervision, (5) but sometimes the concern is too much supervision or supervision of the wrong kind. (6) The Obama Administration's experience is hardly unique; similar lists of instances of failed oversight exist for prior administrations and at all levels of government.

The central importance of supervision should not come as a surprise. Supervision and other systemic features of government administration with which it overlaps--planning, policy-setting, monitoring, resource allocation, institutional structures, personnel systems, and the like--are fundamental in shaping how an agency operates and its success in meeting its statutorily imposed responsibilities. (7) These systemic features are also precisely what distinguish administrative government. Agencies not only adjudicate individual cases, take specific enforcement actions, or issue discrete rules. They do all these activities on a massive scale as part of a broader project of law implementation that requires coordination, investigation, and prioritization. (8) Moreover, if anything, the importance of administration is only more acute today than it has been historically, with new approaches to program implementation and regulation resulting in a broader array of actors wielding greater discretionary authority, often in contexts lacking external controls like judicial review. (9) As a result, systemic features of administration--in particular, internal supervision through planning and ongoing monitoring--are increasingly the linchpin for achieving accountability of federal government programs and actions. (10)

Multiple avenues exist for addressing management and supervisory failures. The recent IRS, NSA, VA, and Health and Human Services (HHS) debacles have triggered extensive media coverage, internal and independent investigations, resignations, proposed legislation, and lawsuits, and they may ultimately lead to criminal prosecutions. (11) One route of response that comes much less quickly to mind than these options, however, is constitutional law. Indeed, the centrality of systemic administration in practice contrasts starkly with its virtual exclusion from contemporary U.S. constitutional doctrine. The exclusion of administration takes a variety of doctrinal guises, such as restrictive standing requirements, individualistic mens rea requirements, and limitations on respondeat superior and supervisory liability in suits against government officers. (12) To be sure, there are exceptions: procedural due process challenges and institutional reform litigation represent two instances in which administrative and systemic functioning play a more central role in assessing whether constitutional requirements are violated. But in many ways these exceptions prove the rule, as judicial resistance to engaging with administration has led courts to view the exceptions quite narrowly. (13)

In short, constitutional law stands largely aloft from the reality of administrative governance, with the Supreme Court refusing to subject systemic features of government operations to constitutional scrutiny. I use constitutional law here to refer to judicially determined constitutional doctrine. This is not to deny that constitutional doctrine represents only one dimension of constitutional law. It is judicially enforced constitutional law, as opposed to forms of constitutional law that emerge from the actions of Congress and the President, or constitutional understandings generated by other actors such as administrative agencies, state and local governments, and social movements. (14) Yet despite the scholarly attention paid to non-judicial constitutional law of late, the courts continue to play a dominant role as expositors of constitutional meaning. And their willingness to defer to constitutional interpretation by other branches appears, if anything, to be dwindling. (15) As a result, the courts' resistance to incorporating administration serves to exclude it from our most recognized form of constitutional interpretation and perpetuates the view that general aspects of administration fall outside the Constitution's ambit.

In this Article, I argue that the exclusion of systemic administration from constitutional law is a mistake. (16) This exclusion creates a deeply troubling disconnect between the realities of government and constitutional requirements imposed on exercises of governmental power. Authorizing and controlling governmental action, along with establishing the federal government's structure, are critical constitutional functions. (17) Incorporating systemic administration is essential if the Constitution is to perform these functions in ways that are responsive to modern governance.

Furthermore, the current doctrinal exclusion of administration stands at odds with the Constitution. The Constitution specifies few details of federal administrative government, but its text and structure repeatedly emphasize one particular systemic administrative feature: supervision. This emphasis on supervision manifests itself most prominently in Article II's imposition on the President of a duty to "take Care that the Laws be faithfully executed," (18) but also surfaces more broadly as a constitutional prerequisite for delegation of governmental power, rooted in separation of powers principles and due process. With such delegation comes responsibility to supervise so as to ensure that the transferred authority is used in a constitutional and accountable fashion. A central claim of this Article is that the Constitution embodies a duty to supervise that current doctrine has simply failed to acknowledge. The precise contours of this duty vary depending on how one conceives of its constitutional basis. A version of the duty based on Article II demands supervision by and within the executive branch, while a version based on principles of delegation extends supervisory obligations to the courts, Congress, and potentially the states. But under both accounts, a duty to supervise represents a basic precept of our federal constitutional structure.

Systemic features of administration thus carry huge practical import and substantial constitutional salience. What then explains their exclusion from constitutional law? The answer is separation of powers concerns and fears of overstepping the judicial role. The Supreme Court put the point bluntly in Lewis v. Casey, insisting that "it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution." (19) The Court has elsewhere emphasized that " [t]he Constitution ... assigns to the Executive Branch, and not to the Judicial Branch, the duty to 'take Care that the Laws be faithfully executed.'" (20) Moreover, the concern is not just with respecting the purview of the political branches but also with protecting the courts, because overseeing administration and managing government institutions are not tasks for which the courts have much institutional competence. Courts both lack political accountability and have little expertise in running administrative institutions or in navigating the substantive policy areas at stake.

These concerns about judicial role and competency are real, but they do not justify the Supreme Court's current refusal to engage with systemic administration. In particular, the challenges that courts...