THE ROBERTS COURT'S FUNCTIONALIST TURN IN ADMINISTRATIVE LAW.

• Author: Koenig, Thomas A.

The Supreme Court's administrative law jurisprudence has recently taken a functionalist turn. West Virginia v. EPA (1) is the latest installment in a series of cases in which the Court has asked questions of degree rather than kind and reasoned through issues in a fashion more integrated than stepwise. In other words, a broader analysis of the structural underpinnings and first principles of the Constitution's separation of powers has increasingly complemented deference rules and decision trees.

Administrative law observers are accustomed to characterizing the Roberts Court's approach to reviewing agency action as sounding in formalism. That is not entirely wrong. Indeed, when considering the separation of powers, the Court routinely voices formalist precepts like "[t]he entire 'executive Power' belongs to the President alone" (2) and that "the Constitution assigns 'all legislative Powers' to Congress and 'bar[s their] further delegation.'" (3)

But the Court hits functionalist notes, too. In a host of recent cases, (4) the Court has assessed the validity of agency actions and structures against broader ideas like the checks and balances and principle of democratic accountability inherent in our constitutional structure. This emerging functionalism has complemented, though not supplanted, the Court's formalist instincts. The Roberts Court's functionalist turn leaves an administrative law doctrine focused as much on the balance of power as the separation of powers.

At one level, this development might seem surprising. It was Justice Antonin Scalia, after all, who proclaimed, "Long live formalism." (5) Formalist and textualist commitments have certainly motivated much of the Court's jurisprudence over the past several years in other areas of the law. (6) But at a broader level, this nascent functionalist turn is not surprising or necessarily unprincipled. Indeed, it is consistent with the Roberts Court's broader commitment to methodologically constrained judging that takes a minimalist approach to reining in exercises of power that overstep constitutional boundaries. (7)

At the heart of the long-running formalism-functionalism debate is a pair of questions about the exercise of power: (1) What kind? (2) How much? (8) Formalism emphasizes the former, and functionalism emphasizes the latter. (9)

For formalists, as Professor M. Elizabeth Magill explains, "the structural provisions of the Constitution specify the type (legislative, executive, judicial) and place (Congress, President, Supreme Court) of all governmental power. The judge assessing the validity of an institutional arrangement must first identify the type of power being exercised and ... make certain that that power is exercised by an official residing in the appropriate governmental institution." (10) In the eyes of formalists, once an exercise of governmental power is classed as legislative, executive, or judicial, it is essential that the proper, constitutionally-appointed actor exercises said power. (11) In that way, powers stay separated.

Functionalists, on the other hand, eschew bright-line rules surrounding who must exercise what power. (12) Instead, as Professor Thomas Merrill explains, functionalists look to "an evolving standard designed to advance the ultimate purposes of a system of separation of powers"--namely, the maintenance of the balance of powers within our constitutional system. (13) As a result, functionalists like Professor Peter Strauss contend that "courts should view separation-of-powers cases in terms of the impact of challenged arrangements on the balance of power among the three named heads of American government." (14) Functionalists are less concerned with maintaining a strict separation of authorities. Instead, they ask how much infringement by one branch against another is too much. If the balance of power between the three branches remains largely intact, the functionalist will be satisfied. (15) In that way, functionalists view separation-of-powers questions as about degree rather than kind.

As Harvard Law School Dean John Manning has observed, both formalists and functionalists proceed based on their sense of the underlying spirit of the separation of powers: "[W]hat counts for functionalists is the apparent background purpose of balance among the branches. What counts for formalists is the apparent background purpose of strict separation." (16)

In recent administrative law cases, the Roberts Court has begun to examine both the questions of "what kind of power" and "how much power," considering the values of both separation and balance. As a result, administrative law doctrine is beginning to move away from "yes or no" questions with clear-cut answers--traditionally the comfort zone of many textualists and formalists alike--towards more challenging line-drawing questions, which invite reflection on the broader values at stake when agency actions reach the judiciary. As Professor William Eskridge wrote in this journal twenty-five years ago, "neither formalism nor functionalism has wholly dominated American constitutional history." (17) The same can now be said of the Roberts Court's administrative law jurisprudence. (18)

Many have bemoaned these developments, alluding to white knights like the major questions doctrine coming to rescue hyperformalist decisions from counterintuitive (or undesired) conclusions. (19) But another way to read the recent separation-of-powers cases is to see a Court looking to context and structure-frequent tools of textualist statutory interpretation-alongside broader presumptive commitments in favor of preventing the concentration of power and safeguarding democratic accountability. Taken together, the Court seems to be resting horizontal separation-of-powers cases on the same edifice as existing vertical separation-of-powers cases. (20)

Such an approach remains methodologically consistent even if it falls outside the traditional formalist framework. Administrative law scholars (and students) have long sought to approach challenges to agency action with a series of yes or no questions, laid out as something of a decision tree. In the Chevron context, for example, one asks whether the statute is ambiguous. If so, then one asks whether the agency's interpretation is reasonable. If the answer is yes, the agency action is generally upheld. Trained in this paradigm, scholars understandably have an impulse to try to work cases like West Virginia v. EPA, Barnhart v. Walton, (21) or United States v. Mead Corp. (22) into such a decision tree. Indeed, after West Virginia, Nicholas Bednar rolled out an updated tree that added yet another branch to account for the Court's latest doctrinal innovation, the major questions doctrine. (23) And while that approach reaches the right bottom-line question--ultimately a court decides either that a question is or is not of the type we would expect to be delegated, for example--reaching the answer often requires a more holistic analysis than a decision tree of multiple, discrete steps implies.

In this emerging mode of analysis, the Court seems to be asking whether, when taken as a whole, the agency action "stays within the lines" along three key dimensions--(1) the scope of congressional delegations of authority to administrative agencies, (2) what agencies do with that delegated power, and (3) how these agencies exercise that power. Whether the agency action is still valid after being analyzed through these three lenses--not whether it "fell off" at a particular branch of a decision tree--is a more effective description of the case law. Such an approach still retains a methodological consistency by examining those three dimensions concurrently. While the Court's approach does not require examining the three dimensions in the same sequence, neither does it enable unconstrained judicial freewheeling. The same three constraints guide the resolution of every case, setting the stage for future litigation.

In Part One of this Note, we analyze recent administrative law cases to illustrate the Roberts Court's three-dimensional approach to incorporating functionalist considerations. In Part Two, we zoom out to examine the implications of this emerging functionalism, drawing an analogy to Justice O'Connor's approach to federalism cases. And in Part Three, we offer some thoughts about how this functionalist turn might be responsive to concerns about methodological inconsistency and judicial overreach.

1. FUNCTIONALISM IN THREE DIMENSIONS

   1. The Major Questions Doctrine: A Functionalist Variant of the Nondelegation Doctrine

      "The nondelegation doctrine is the Energizer Bunny of constitutional law: No matter how many times it gets broken, beaten, or buried, it just keeps on going and going." (24)

      The nondelegation doctrine is, once again, making a comeback. This time, though, it has arrived in new clothing: the major questions doctrine. This substantive canon illustrates the Court's functionalist turn in administrative law. (25) While the nondelegation doctrine would hold that Congress must decide certain questions itself, the major questions doctrine merely demands a clear statement from Congress that it has intended to delegate power to an agency to decide a certain question.

      The Court's holding in West Virginia might indicate that the functionalist--as opposed to the formalist--variant of the nondelegation doctrine is gaining steam. in other words, as scholars debate the historical foundations of a strict formalist nondelegation doctrine, (26) a more prudential approach has emerged that may sometimes reach the same conclusions, but generally asks different questions. (27)

      At its core, the nondelegation doctrine arises out of the text and structure of the Constitution: Article I vests all "legislative powers" in Congress. A formalist argument can follow: Congress may not delegate away legislative powers to other actors (like administrative agencies). Quoting...