OUR ADMINISTERED CONSTITUTION: ADMINISTRATIVE CONSTITUTIONALISM FROM THE FOUNDING TO THE PRESENT.

• Author: Lee, Sophia Z.

INTRODUCTION 1700 I. THE CONSTITUTION'S ADMINISTRATIVE FOUNDATIONS, 1776-1900 1710 A. Administering the Constitution Before the Civil War 1710 B. Administrative Constitutionalism During Reconstruction and 1719 the Gilded Age II. PROGRESSIVE ERA ADMINISTRATIVE CONSTITUTIONALISM, 1900-1933 1729 III. ADMINISTERING THE CONSTITUTION SINCE THE NEW DEAL, 1933-THE 1733 PRESENT CONCLUSION 1744 INTRODUCTION

Administrative law has long been a quiet corner of legal scholarship. Debates occurred over changes at the margin: how much of a role should cost-benefit analysis play? How could notice-and-comment rulemaking better live up to its promise of public engagement? How big a problem is the revolving door or industry capture of agency agendas? The literature excited insiders, but was viewed by most outsiders as technical, specialized, and, often, dry.

No longer. For the first time in nearly a century, the scholars, judges, lawyers, and advocacy groups challenging the constitutional foundations of the modern administrative state have reached a critical mass. Detractors have existed since the New Deal settled the current legal framework for administration. But critics, while garnering attention from time to time, have remained largely at the fringes of scholarly, judicial, and political discourse. Now their critiques top the agenda of even the largest-tent conservative legal organization, the Federalist Society; have revivified legislative proposals that could dramatically change the New Deal settlement; and potentially command a majority on the Supreme Court.

Legal scholars have played a central role in generating this constitutional critique. Until recently, the New Deal settlement governed judicial doctrine. Hints of the critique might crop up in an opinion by Justice Clarence Thomas or the D.C. Circuit Court of Appeals might send up a trial balloon. (1) But by and large, the constitutional critique of the modern administrative state appeared in think tank publications and the pages of law reviews. (2) Its architects, labeled defenders of the "Constitution in Exile," called for a return to what they described as the pre-New Deal constitutional order. (3)

The influence of this critique has grown rapidly in recent years. In 2005 Jeffrey Rosen contended that the "Constitution in Exile" movement planned to pack the courts. Rosen described John Roberts, who President George W. Bush was considering for a Supreme Court appointment, as one of the movement's fellow travelers. (4) Roberts was soon confirmed as Chief Justice. Since then, that court-packing plan has advanced in leaps and bounds, so much so that these days, Chief Justice Roberts looks like a relative moderate on the Court. (5)

Meanwhile, the substance of the critique has also evolved. Now the Progressive Era rather than the New Deal marks the moment the nation turned its back on the founding constitutional order and ushered in the modern administrative state. (6) This shift has made the nineteenth century a central battleground for contemporary arguments about the future of administration, (7) and the template for scholars' prescriptions about how to restore the administrative state's constitutionality. (8)

At a general level, critics who argue for a return to nineteenth-century administrative law emphasize several features said to characterize the period. First, they argue that Congress legislated with far greater specificity than it does today, granting agency actors little to no discretion to adopt regulations that bound the public. (9) Second, they contend that Congress tasked courts, not agencies, with enforcement of the most coercive policies and de novo judicial review was available for agency decisions implicating what one scholar has called the "core private rights" to life, liberty, and property. (10) Agencies could issue final decisions only as to "public rights," such as the distribution of public lands, and private "privileges," such as a license to operate. (11) Third, they argue that, other than during the mid-nineteenth century, federal courts reviewed agency action for its comportment with the law. (12) Fourth, in conducting that review, they contend, courts gave weight to executive branch interpretations if they were longstanding or contemporaneous to the law's enactment, but, they argue, "there was... no general rule... requiring 'deference' to executive interpretation qua executive interpretation." (13)

Throughout this literature, one premise has been assumed without being examined: that courts played a primary role in constitutional interpretation, including determining the constitutionality of agency action. For instance, Joseph Postell describes courts in the nineteenth century as "exercising authority to overturn agency action on constitutional grounds." (14) Aditya Bamzai describes courts' constitutional review of the executive branch in this period as de novo. (15)

But what if instead agencies, not the courts, took the lead in interpreting the Constitution during the nineteenth century? Indeed, what if courts hardly reviewed the constitutionality of agency action at all? What if it is, in fact, the modern administrative law that these critics want to restore to its nineteenth-century roots that has shifted responsibility for constitutional interpretation from agencies to courts and expanded courts' constitutional review of agency action? A growing body of work on what is called administrative constitutionalism suggests this may very well be the case.

I found my way to the term "administrative constitutionalism" through historical research. I was encountering mid-twentieth-century agency interpretations of the Constitution that differed notably from those of the Supreme Court and did not know what to make of them. (16) Legal scholarship on the role Congress plays in making constitutional law gave me a way to make sense of that historical record. It also gave me a nomenclature: if Congress's engagement with the Constitution was "legislative constitutionalism," what I was finding was "administrative constitutionalism." (17) In 2010, I first used the term to describe agencies' interpretation and implementation of the United States Constitution. (18) Since then, historians who encountered the Constitution in agency archives have built a burgeoning literature on how agencies have interpreted and implemented the Constitution. (19)

Using this history, scholars of constitutional and administrative law have developed a rich literature on the theoretical and normative questions administrative constitutionalism raises. These include how public, self-conscious, or determinative constitutional considerations have to be to count as administrative constitutionalism; what institutional factors foster, deter, and shape administrators' engagement with the Constitution; when, if ever, agencies can interpret the Constitution differently than the courts; and whether courts should defer to agencies' constitutional interpretations. (20)

Administrative constitutionalism can be defined broadly or narrowly. Defined most broadly, it refers to agencies' role in constructing constitutional norms such as adequate due process, the bounds of free speech, or the scope of executive power, whether or not agencies consider themselves to be doing so. More narrowly, it includes only instances in which agencies self-consciously consider the meaning of the Constitution in designing policies and issuing decisions. (21)

Broadly defined, it includes all instances in which agencies implement the Constitution, even if they do so merely as a precursor to determination of the constitutional question by Congress or the courts. More narrowly defined, administrative constitutionalism encompasses only those instances in which an agency has the final say or interprets the Constitution in a way that sets it against the courts or Congress. (22)

However defined, this Article argues that historians' case studies of administrative constitutionalism suggest that administrative agencies have been the primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of administrative constitutionalism has changed significantly over time as the balance of opportunities and constraints has shifted. (23) That said, the Article also contends that over the twentieth century, and especially since the New Deal, courts have cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review during this period. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers' roles in agency administration. The result is that administrative constitutionalism may still be the most frequent form of constitutional governance, but it has grown, paradoxically, more suspect even as it has also become far more dependent on and deferential to judicial interpretations. (24)

The history of administrative constitutionalism offered here is likely to trouble those who seek to restore administrative law to its nineteenth-century foundations (whom I will call "foundationalists"). (25) They are unlikely to find appealing a nineteenth century in which agencies took the lead in deciding constitutional questions, subject to some oversight by Congress and the President, but virtually none by the courts. These critics hold out constitutional law as uniquely important: that law is what powers their arguments that the United States should turn back the clock. And they prefer nineteenth-century agencies because they depict them as exercising little consequential legal power. (26) But this history suggests that those agencies had the first and often final word on the Constitution's meaning. Foundationalists also assume that reinstating the nineteenth-century constitutional order would empower courts to more closely scrutinize agency action...