The constitutional duty to supervise.

Author:Metzger, Gillian E.
Position::II. Rethinking Administration's Constitutional Status B. Delegation, Accountability, and the Duty to Supervise 3. The Alternative of Judicial Review through Conclusion, with footnotes, p. 1897-1933
  1. The Alternative of Judicial Review

    The close connection between delegation and supervision makes it all the more surprising that the Court in 2001 strongly rejected the suggestion that agencies' interpretation of the scope of their delegated authority may affect the constitutionality of the delegation. (276) Yet even the earlier delegation jurisprudence, which did acknowledge the relevance of internal constraints on delegated authority, viewed any constitutionally required oversight in quite limited terms. (277) Moreover, the need for supervision to preserve legal accountability, by preserving among other things the applicability of constitutional requirements to those wielding governmental power, is not now part of private delegation analysis. (278) Current doctrine does suggest a link between delegation and supervision in one context: due process claims for failure to train. (279) But the individual liability focus of such claims, reinforced by the Court's imposition of the deliberate indifference standard, obscures recognition of supervision as a structural constitutional requirement of delegation.

    The lack of development of the supervisory implications of delegation is puzzling. If delegation does indeed present such a challenge to the accountability of government, why hasn't the linkage between delegation, accountability, and supervision received more judicial attention? One partial explanation for the courts' failure to draw this connection is the availability of judicial review of specific administrative decisions. Rather than emphasizing internal supervision's importance for ensuring accountability, courts have relied on external judicial scrutiny of specific actions to achieve this result. This reliance on judicial review in lieu of supervision is clearest with respect to legal accountability, given that the federal courts themselves lack direct electoral accountability. But judicial review also operates to reinforce political accountability by ensuring that agencies adhere to congressional instructions embodied in statutes. (280) Indeed, the deference doctrines that courts have constructed to guide their review of administrative action can be viewed as efforts to mediate control of agency action by two political principals--Congress and the President. (281)

    Interestingly, direct judicial review of administrative action is a modern phenomenon, developed only at the outset of the twentieth century under particular statutory schemes. (282) Although such review was subsequently codified in the trans-substantive APA in 1946 and is now the norm, for long periods of the nation's history such direct review was only narrowly available and limited to nondiscretionary or ministerial executive action. (283) Yet the absence of direct legal challenges to administrative decisions did not mean that judicial review was lacking. Instead, courts employed other techniques to enforce legal constraints on agencies, in particular common-law suits for damages against individual officers. (284) Individuals could also assert lack of legal authority or jurisdiction as a defense to suits by government officers to enforce the law. (285)

    A striking feature of many contemporary administrative contexts is the extent to which judicial review of specific administrative decisions is absent or substantially curtailed. Further, several statutory and doctrinal developments--such as the creation of broad official immunity doctrines, the limited availability of Bivens actions, the substitution of the government as a defendant in tort suits under the Federal Tort Claims Act, the APA's provision for direct suit against agencies, and indemnification provisions--have undercut individual federal officer suits as a method of ensuring accountability. (286) Whether or not such limitations on judicial review are constitutional in their own right, they underscore the need to illuminate the constitutional linkages between delegation, supervision, and accountability that have previously lain dormant. Traditional judicial review of specific administrative actions is increasingly unable to substitute for internal supervision.

    1. The Scope of the Duty To Supervise

      This Article has demonstrated that two alternative bases support recognition of a constitutional duty to supervise: the Take Care Clause and repeated suggestions of hierarchy in Article II; and the Constitution's structural connection of delegation, supervision, and accountability, which can also be rooted in due process. But a critical piece of the analysis for such a duty is still missing: what exactly does such a duty to supervise entail, and does the scope of the duty to supervise differ according to the basis on which it is justified?

      In large part, these two bases yield overlapping versions of the duty to supervise, reflecting the fact that both share two key precepts. The first is an emphasis on hierarchy and accountability. The duty to supervise identifies the oversight of lower-level exercises of governmental power by higher-level officials--and ultimately the President--as a central principle of constitutional structure. The core scope of the duty to supervise follows from this precept: the duty requires internal executive-branch supervision sufficient to ensure that this hierarchical structure is honored and that delegated power is used in accordance with governing requirements. Although the Weberian ideal connects hierarchy to bureaucracy and to detailed specification and review of lower-level decisionmaking by higher-level officers, (287) nothing in the principle of hierarchy per se demands this type of higher-level control of subordinates. What the principle of hierarchy entails--and more importantly, what the hierarchical structures in the Constitution entail--is simply levels of authority, with lower-level officials controlled by and accountable to those higher up. (288) In other words, the principle of hierarchy does not require a particular form of control.

      Here is where the second key precept of the duty to supervise becomes central: the duty is a systemic and structural one. It requires systems and structures of supervision adequate to preserve overall hierarchical control and accountability of governmental power. Failures of supervision in discrete circumstances are not constitutional violations if the underlying system for supervision is sufficient and generally employed. Moreover, given the systemic and structural character of the duty to supervise, this duty is fundamentally possessed by government institutions even if it is asserted in suits against individual officers in charge. This systemic focus marks a significant difference from the individualistic cast of current constitutional doctrines implicating supervision. (289) And it means that whether the duty to supervise is violated should not turn on the state of mind of particular officials, but rather on an objective assessment of the adequacy of the supervisory arrangements in place.

      Exactly which types of supervisory systems satisfy the duty will no doubt depend on context, as is currently true for the duty to train. (290) Additional supervision may be needed for agency actions that are critical to an agency's functioning or that implicate important private interests. (291) There may be occasions and contexts in which only one or a few methods of supervision will satisfy the duty. Much of the time, however, a variety of supervisory approaches should suffice, ranging from detailed review of specific actions to more general monitoring or guidance. (292)

      The appropriateness of a variety of approaches provides a response to concerns that recognizing a duty to supervise is in tension with the contemporary governance trends toward more collaborative and decentralized administration, under which lower-level federal officials--along with stakeholders, private contractors, state and local agencies, and the like--exercise substantial discretion and control over the shape of government programs. (293) The duty to supervise does not preclude such lower-level and nongovernmental discretion, provided that systems exist to ensure a minimum level of hierarchical oversight as well. (294) That said, the duty to supervise does impose a constitutional barrier to administrative arrangements that diffuse governmental power to such a degree that such a minimal level of higher-level oversight is prevented. A potential example is found in privatization arrangements that involve private entities' exercising significant control over program participants without any mechanism by which participants can obtain government review of decisions that centrally affect the government services participants receive. (295) The Central Intelligence Agency's (CIA) detention and interrogation program provides another instance. A recent Senate report concluded that meaningful high-level executive-branch oversight of the CIA's use of enhanced interrogation techniques was lacking due to the agency's failure to provide the White House with full and accurate data on its interrogation activities. (296) Given the contentiousness, questionable legality, and tremendous potential for harm associated with enhanced interrogation, a strong constitutional case can be made for close presidential supervision in this context. (297)

      The acceptability of a range of oversight mechanisms also importantly differentiates the duty to supervise from unitary executive approaches. As noted above, strong unitary executive advocates insist on full presidential control of all executive-branch decisionmaking or executive officials. (298) But insistence on such broad presidential supervision does not follow from the President's supervisory obligation to ensure faithful execution of the laws. (299) The general phrasing of "faithful execution of the Laws" seems to be satisfied by oversight that ensures overall or systematic legal adherence, rather than by presidential policing of individual...

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