Constitutional administration.

• Author: Wurman, Ilan
• Position: Introduction through II. A Tripartite Theory of Administrative Law A. The Legislative Veto and a Rulemaking Enabling Act 5. The Rulemaking Enabling Act Under Modern Doctrine, p. 359-398 - Author abstract

Table of Contents Introduction I. The Problem of Modern Administration A. The Power of Separation of Powers B. The Birth of Two Fictions II. A Tripartite Theory of Administrative Law A. The Legislative Veto and a Rulemaking Enabling Act 1. Toward a legislative veto of legislative acts 2. A few observations 3. The possibility--but not inevitability--of one-house vetoes 4. Rulemaking as lawmaking 5. The Rulemaking Enabling Act under modern doctrine 6. Proposed text of a Rulemaking Enabling Act B. Presidential Administration and a Modified Unitary Executive 1. Unitary administration 2. Presidential administration 3. Constitutional administration: the enforcement power 4. Proposed text of an Independent Commission Reform Act C. Judicial Review of the Three Powers 1. The current appellate model of judicial review 2. Judicial review of rulemaking: Chevron 3. Judicial review of executive actions 4. Judicial review of adjudications 5. Proposed text of an Administrative Adjudications Act III. Three Objections A. The Indeterminacy of Separation of Powers B. A Fourth Power of Government? C. Limitless Delegation? Conclusion: Formalism, Functionalism, and "Balance" Appendix Introduction

Many of administrative law's modern debates and key constitutional decisions may be understood as expressions of either functionalism or formalism. Modern doctrine, as a formalist matter, assumes that Congress does not delegate legislative power to agencies because under Article I, Section 1 of the Constitution, only Congress may make law. (1) The doctrine also assumes that when agencies make rules (or adjudicate them), they ultimately exercise only executive power--though it may be "quasi-legislative" or "quasijudicial" (2)--because Article II, Section 1 declares that the President and his administration may execute but not make or adjudicate the law. (3)

One school of formalists, recognizing that this is what the Constitution requires, rejects the modern administrative state because Congress routinely delegates its legislative power, even though the doctrine pretends it does not. Further, although the doctrine pretends that agencies are merely executing the law, agencies are in fact routinely exercising legislative and judicial power as well, undermining the constitutional separation of powers. (4)

Many functionalists, on the other hand, entirely accept this state of affairs, arguing that other procedural mechanisms, such as those required by the Administrative Procedure Act (APA), may acceptably replace the constitutional separation of powers. (5) Or they advocate unoriginalist practices that accommodate the modern administrative state but attempt to make it better reflect the original constitutional purposes of the separation of powers. (6) Justice Byron White's famous dissent in INS v. Chadha, where he advocates a legislative veto to bring the legislative and executive branches more into balance, is the classic example of the latter kind of attempt. (7)

This Article advances a new approach to resolving modern administrative law's two core constitutional difficulties of delegation and separation of powers. It argues that we ought to accept, as a functionalist matter, the delegation of legislative power to agencies. It does no good for the doctrine to mask the unconstitutional foundation of modern administration for the mere sake of constitutional appearances. This Article argues that recognizing the practical reality of legislative delegation will accomplish much more. Indeed, if we make this one functionalist move--if we accept one unoriginalist precedent at the core of modern administrative government--we open up a panoply of formalist solutions to the problematic combination of legislative, executive, and judicial powers in the executive branch, a combination that the Framers understood to be the very definition of tyranny. (8) And, as we shall see, these formalist solutions also mitigate at least some of the harms to republicanism that stem from the delegation of legislative power from Congress to agencies.

Once we accept delegation, we can openly acknowledge that the administrative state exercises not only executive but also legislative and judicial power. (9) We can then delineate the legislative, executive, and judicial components of administration and empower each constitutional branch of government over the component corresponding to its own constitutional function. In this way--under what this Article calls "constitutional administration"--administrative law can be made more consistent with the Constitution without sacrificing administrative law's engendering values. The only constitutional sacrifice we must make is one that has already been made and cannot be undone. Delegation, even if unconstitutional as the Constitution was originally understood, (10) has become part of our constitutional order. (11)

The legislative veto is one example of the possibilities authorized by constitutional administration. (12) The debate over the legislative veto normally consists in two positions: Some accept that the legislative veto is unconstitutional and believe that its unconstitutionality makes it impermissible. (13) Others accept its unconstitutionality but argue that we should permit it because the administrative state as it exists is also unconstitutional. (14) That is, the legislative veto is an otherwise unconstitutional mechanism that makes the unconstitutional administrative state somewhat more constitutional.

Constitutional administration breaks ground in this debate. With constitutional administration's insight into delegation, a legislative veto of the administration's legislative acts would be constitutional. Under modern doctrine, a legislative veto would always be unconstitutional because if agencies are merely executing the law, then Congress must repeal or amend a law to undo an execution of it that Congress does not like. That requires the assent of both houses of Congress and the President. Constitutional administration allows us to recognize that in some instances--such as when agencies engage in certain kinds of rulemaking--agencies are in the throes of making a law, and so there has not yet been a law made that requires bicameralism and presentment to repeal or amend.

Constitutional administration also raises new possibilities for executive power. (15) It posits that a presidential supervisory and removal authority ought to extend equally to executive branch agencies and to independent commissions (16)--but only with respect to the executive functions of either. This Article suggests that presidential administration (17) is required as a constitutional matter over the enforcement actions of independent commissions. This ought to please advocates of the unitary executive because, under this view, the President is unitary with respect to the administration's executive powers. (18) But it also ought to please the traditional advocates of agency independence or congressional administration because the President will have nonunitary, perhaps even minimal, power over the administration's legislative and judicial functions.

Judicial possibilities also follow from constitutional administration. (19) First, this model justifies significantly limiting Chevron deference (20) by drawing a parallel to the courts' presumption of constitutionality when reviewing congressional legislation. (21)

Second, this Article shows that constitutional administration better explains than does existing doctrine certain distinctions in Supreme Court cases involving administrative discretion. For example, it justifies the different standards of judicial review applied to agency inaction in the rulemaking and enforcement contexts. (22)

Third, constitutional administration would allow the vast majority of contemporary administrative adjudications--usually adjudications over benefits, such as social security disability payments--to remain untouched because they are executive in nature. (23) Yet it would require traditionally judicial adjudications--those that impose criminal penalties or civil fines or otherwise affect life, liberty, or traditional property--to receive de novo review by an Article III court. (24) Others have argued for this distinction, but this Article adds to the literature by pointing to an obvious precedent for judicial review of agency adjudications: the method of magistrate and bankruptcy judges delivering reports and recommendations to Article III district judges. Constitutional administration requires administrative law judges (ALJs), in any truly judicial adjudication and absent consent of the parties to the proceedings, similarly to deliver reports and recommendations to Article III judges, who must then review both conclusions of law and fact de novo.

To be sure, these insights may not apply to significant swaths of administrative activity that defy easy classification as legislative, executive, or judicial. As for those activities, Congress and the President can continue seeking compromises to establish the appropriate controls and structures. But at least for some important classes of cases--certain rulemakings, enforcement, and specific kinds of judicial activity--the administrative action can be confidently characterized as mostly legislative, mostly executive, or mostly judicial. The insights here will thus apply. That will be no small achievement.

All that is required to enact this Article's model of constitutional administration is three short, relatively uncomplicated acts of Congress, each with existing statutory precedent. (25) Perhaps more importantly, there are no obvious political hurdles to enacting these three laws. Although they would work a profound constitutional reform of the administrative state, none requires a tectonic shift in the practices of the administrative state. These reforms are, put simply, possible and practicable.

The remainder of this Article proceeds as follows. Part I...