Administrative Agencies and Judicial Review-a Constitutional Imperative?
| Jurisdiction | United States,Federal |
| Citation | Vol. 09 No. 1987 Pg. 1602 |
| Pages | 1602 |
| Publication year | 1987 |
1987, September, Pg. 1602. Administrative Agencies and Judicial Review-A Constitutional Imperative?
While Alexis de Tocqueville, on his visit to America in 1831-32, did not foresee the vast power our administrative agencies would possess today, he did see that a constitutional imprint was in place:
If the executive government is feebler in America than in France, the cause is perhaps more attributable to the circumstances than to the laws of the country.
The President of the United States possesses almost royal prerogatives, which he has no opportunity of exercising; and the privileges which he can at present use are very circumscribed. The laws allow him to be strong, but circumstances keep him weak.
de Tocqueville warned against the dangers inherent in a centralized administration, which could lead to an "insufferable despotism."
Since de Tocqueville, many have mused over whether the U.S. Constitution mandates that our three branches of government be separate or if a result is to be inferred from a system that provides for "checks" and "balances." The Constitution does not provide expressly for separation; the logic that each "element" of government was intended to be separate arose because each possessed powers distinct from the others. However, in practice there is no reality to the proposition, as each branch of government combines legislative, judicial and executive authority.
A clear example of the executive's intrusion into and use of the so-called distinct powers of the other branches can be found in administrative agencies. These agencies include departments of the executive branch of government such as Agriculture, Health and Human Services, Justice and Treasury, and independent agencies such as the EEOC, EPA, FDIC, SEC and VA, which were statutorily created by Congress. Congress has empowered these agencies to make rules (law) and they do so in frightening amounts in the Federal Register and Code of Federal or Colorado Regulations. This article discusses the constitutional authority for the existence and powers of administrative agencies.
The phenomenal growth and development of government agencies was a subject of concern a little more than 100 years after de Tocqueville's visit, and was no longer simply theoretical. In 1937, President Franklin D. Roosevelt's Committee on Administrative Management charged that federal administraive agencies "are in reality miniature independent governments . . . vested with the duties of administration . . . [and] given important judicial work." Roosevelt personally added that the agencies had threatened to become a "fourth branch of the government for which there is no sanction in the Constitution."(fn2)
Did the Constitution foresee and sanction administrative agencies? If so, which sections of the Constitution provide, if only implicitly, for agency existence and power? Of practical importance, how does the Constitution control this "fourth branch?" Would the same control be possible without this written document? In the Bicentennial year of the U.S. Constitution, these questions are still of interest, even after 200 years of experience with this form of government.
There are many issues of a legal nature that the Constitution does not address, such as divorce and personal injury. However, one would expect it to authorize, or at least mention, what has become a major part of our governmental process---rule by administrative fiat. Yet a review of the founding charter yields barely a hint of the bureaucracy's existence, let alone its importance in the everyday lives of U.S. citizens.
The Constitution provides that "all legislative powers herein granted shall be vested in a congress of the United States."(fn3) The Constitution further provides that Congress shall also have the power "[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in...
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