The administrative constitution in exile.

• Author: Sohoni, Mila
• Position: Abstract into II. The Rule of the Exceptions A. Waivers and Delays, p. 923-948

Abstract

For decades, the aspiration of administrative law has been to develop legal structures that would constrain and legitimate the exercise of agency power. The fruition of that hope was the complex internal blueprint that has made modern administrative governance both successful and legitimate--the framework for executive action that many have hailed as the "administrative constitution." Today, however, novel exercises of administrative power are crowding out old and familiar varieties, making the conventional forms of administrative action less and less relevant to the conduct of government.

This Article examines how the administrative constitution has changed over time and how that transformation can be better understood by reference to constitutional theory. Administrative law today confronts a conceptual choice similar to that faced by constitutional law in the wake of the New Deal: whether to treat fundamental constitutional change as exile or as evolution. When faced with that choice, living constitutionalists did not simply declare by fiat that the Constitution was "living." Instead, they justified that assessment by explaining how democratically legitimate constitutional change occurs as a result of an entire system of constitutional construction working in concert--a system that includes courts, political parties, citizens, and social movements.

The problem for administrative law is that it lacks such an account of legitimate administrative constitutional evolution. The legal, political, and social mechanisms that ensure that the living Constitution is simultaneously robust, adaptable, and democratically legitimate apply much more weakly to the dynamics responsible for administrative constitutional change. Administrative law thus faces a daunting challenge: to ensure that administrative constitutional change itself occurs in a constrained and legitimate fashion. If that challenge is not met, we run the risk that we will be governed not by a robust and administrative constitution, but by an administrative constitution "in exile."

Table of Contents Introduction I. The Idea of the Administrative Constitution A. Agency Procedure B. Internal Checks and Balances C. Judicial Review D. Transparency II. The Rule of the Exceptions A. Waivers and Delays 1. Notice and an Opportunity to Comment 2. Contemporaneous Reason-Giving 3. Judicial Review B. Counterparties and Conservators III. Exile and Evolution IV. The Living Constitution and the Administrative Constitution Conclusion Mila Sohoni, Associate Professor, University of San Diego School of Law. For helpful thoughts and conversations, many thanks to Kate Andrias, Jordan Barry, Laurie Claus, Chris Egleson, Dick Fallon, Dov Fox, Adam Hirsch, Rebecca Ingber, Lee Kovarsky, Ron Levin, Daryl Levinson, Gillian Metzger, Dave Owen, Michael Ramsey, Daphna Renan, Kate Shaw, Aaron Simowitz, Alexander Tsesis, Lou Virelli, Alan Weinstein, and Adam Zimmerman. I am also grateful to the participants in and organizers of the Fall 2014 Southern California Junior Faculty Workshop at Loyola Law School and the AALS New Voices in Administrative Law event in January 2015.

INTRODUCTION

For the last century, the aspiration of administrative law has been to develop legal structures that would structure and channel the exercise of agency power. (1) This challenge was answered by the crafting of what many have called an "administrative constitution." (2) These ground rules for administrative law include "structural and substantive measures," (3) such as the Administrative Procedure Act (APA) and open-government laws, as well as the key precedents and conventions that shape agency action, such as Chevron and the presumption that agency action will be reviewable. (4) This core body of law is frequently credited with performing the functions of constitutional law, (5) but with an extra kick that the Madisonian blueprint lacks--the bonuses of efficiency, deliberativeness, and transparency. To many, modern administrative governance owes both its success and its legitimacy to this complex and enduring legal structure. (6)

Recently, however, others have discerned deepening cracks in this edifice. In these accounts, the administrative constitution's central commitments are becoming irrelevant to the ongoing functioning of the administrative state. Administrative law has become a "lost world," Daniel Farber and Anne Joseph O'Connell recently wrote in one such account, as the administrative state's "actual workings ... have increasingly diverged from the assumptions animating the APA and classic judicial decisions." (7)

We have come to a strange pass. As emphatically as some have insisted upon the utility, centrality, and durability of the administrative constitution, others now argue that the basic constraints of that administrative constitution have become attenuated. The administrative constitution is widely hailed as a meaningful checkpoint that rationalizes and legitimates consequential administrative action--and is also dismissed as an outmoded set of rules that no longer has real purchase on a significant set of such actions. The term "administrative constitution" is becoming something akin to one of those oddities of English, the contronym; it has come to carry, like the words "moot" or "sanction," two simultaneous and contradictory connotations--that it is both essential and dispensable.

So, which is it? Just what sort of constitution is this "administrative constitution," and what exactly is happening to it right now? Are the march of time and the pressure of politics rendering it, and the values it aspires to shield, obsolete? Or, alternatively, is it essentially intact and simply adapting, as certain constitutions seem to do when circumstances demand? (8)

On one threshold point--whether a significant type of change is afoot--there is little room for disagreement. As with privatization (9) and new governance, (10) we are witnessing the proliferation of new and "unorthodox" forms of administrative government; but unlike privatization or new governance, (11) these new forms of administrative government are emerging within the four walls of the existing administrative state. For their legality, these new measures rely upon facets of administrative law--the exercise of enforcement discretion, regulation free of judicial review, exceptions to rulemaking requirements, and so forth--that have long existed as a formal matter, but that traditionally have had a modest footprint. Today, regulatory measures predicated on these formerly exceptional facets of administrative law affect the rights and obligations of millions of individuals and public and private entities in myriad regulatory contexts. (12)

In thinking about what to make of this shift, consider an analogy to constitutional law. Before the New Deal, the Commerce Clause and the spending power existed. But before the New Deal era, the combined significance of these provisions was much narrower than their collective significance after the New Deal...