Gillian E. Metzger
91 Texas L. Rev. 1897
Federal administrative agencies often engage in “administrative constitutionalism” when interpreting and implementing the U.S. Constitution. Defining administrative constitutionalism as the straightforward application of established constitutional requirements would unduly limit the scope of the concept however. Administrative constitutionalism also encompasses the elaboration of new constitutional understandings by administrative actors, as well as the construction (or “constitution”) of the administrative state through structural and substantive measures. Identifying administrative constitutionalism’s various forms highlights the central challenges confronting it as a form of constitutional interpretation. Administrative constitutionalism efforts are often embedded in ordinary law contexts, and thus lack transparency. This embedded nature poses a real accountability challenge linked to the difficulties of identifying instances of administrative constitutionalism. Therefore, greater transparency is essential to the legitimacy of this method of constitutional development. However, greater transparency invites more political or judicial veto, thus deterring administrative constitutionalism from occurring. Professor Metzger lays out a potentially fruitful approach to increasing transparency without deterring valuable administrative constitutionalism. The approach encourages more overt administrative engagement with constitutional concerns through the mechanisms of ordinary administrative law. Although this approach has its merits with regard to administrative constitutionalism, Professor Metzger argues against extending its doctrinal and normative implications to constitutional construction more generally. There are good reasons to resist erasing the doctrinal distinction between constitutional and ordinary law across the board, even if limiting the approach to the administrative context leads to some inconsistency between lived constitutional practice and constitutional doctrine.