Administrative Constitutionalism

Gillian E. Metzger

91 Texas L. Rev. 1897

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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.

Collective Action Federalism and Its Discontents

Neil S. Siegel

91 Texas L. Rev. 1937

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An increasing number of scholars argue that the Commerce Clause is best read in light of the collective action problems that the nation faced under the Articles of Confederation.  The work of these “collective action theorists” is reflected in Justice Ginsburg’s opinion in National Federation of Independent Business v. Sebelius.  Writing for four Justices, she stressed the “collective-action impasse” at the state level to which the Affordable Care Act responds.

In its purest form, a collective action approach maintains that the existence of a significant problem of collective action facing two or more states is both necessary and sufficient for Congress to address the problem by relying on the Commerce Clause.  Unlike nationalist defenders of unlimited federal commerce power, a collective action approach does not ask whether the regulated conduct substantially affects interstate commerce in the aggregate.  Unlike federalist defenders of limited federal commerce power, a collective action approach does not focus on the distinction between economic and noneconomic conduct, or between regulating and requiring commerce.

Accordingly, nationalists may agree that a collective action problem is sufficient for Congress to invoke the Commerce Clause, but they will disagree that it is necessary.  By contrast, federalists may agree that a collective action problem is necessary for Congress to invoke the Commerce Clause, but they will disagree that it is sufficient.

This Article anticipates such criticism.  Regarding the nationalist critique of a collective action approach, Professor Siegel argues that the nationalist “substantial effects” test imposes no judicially enforceable limits on the scope of the Commerce Clause.  He also argues that nationalists may define multistate collective action problems too narrowly.  In addition to races to the bottom, collective action problems include interstate externalities that do not cause races to the bottom.

Broadening the definition of multistate collective action problems to include interstate externalities gives rise to the federalist objection that every subject Congress might want to address can plausibly be described as a collective action problem.  Federalists may further object that the Commerce Clause is limited to “Commerce.”  In response, Professor Siegel argues that “Commerce” is best understood broadly to encompass many social interactions outside markets, as Professors Jack Balkin and Akhil Amar have urged.  Professor Siegel also argues that a collective action approach need not validate unlimited federal commerce power.  Specifically, he identifies three ways of limiting the kinds of interstate externalities that justify use of the Commerce Clause.

We the People, They the People, and the Puzzle of Democratic Constitutionalism

David A. Strauss

91 Texas L. Rev. 1969

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In what sense is the Constitution we live under today the product of “we the people”?  Despite the appeal of assigning a meaningful democratic pedigree to our Constitution, Professor Strauss identifies several questions that suggest that our Constitution is more the product of they the people, and that our system of common law constitutionalism has departed from what the ratifying and amending generations intended.  The idea of common law constitutionalism is that we resolve controversial questions of constitutional law not by examining the text of the Constitution but on the basis of precedents, both judicial and non-judicial, combined with judgments of fairness and good policy.  Professor Strauss demonstrates how common law constitutionalism can be democratic, despite the fact that it allows unelected judges to override the elected branches through judicial review.  Contrary to appearances, a judge-centric system is democratic for several reasons.  First, although federal judges do not run for office and cannot easily be turned out of office, they are embedded in a democratic system. Second, precedent reflects popular sentiment to a degree.  Finally, judicial review itself will become vulnerable if the courts deviate from public opinion too much and too often.  Therefore, although our written Constitution was the work of they the people, our evolutionary Constitution is, in important ways, the work of we the people.

Constitution-Making: An Introduction

Mark Tushnet

91 Texas L. Rev. 1983

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Alexander Hamilton’s observation that the people of the thirteen colonies were the first to be given the opportunity to define their constitution “from reflection and choice” rather than “accident and force” may have been accurate, but that opportunity now extends to people everywhere.  The precise issues that constitution makers confront vary widely and depend on the specific historical circumstances under which they operate. Generalizations are difficult, perhaps impossible, to come by.  Yet, we can identify some issues about constitutional design that arise repeatedly.  Focusing on some of those issues, this Essay examines some of the more important conceptual and practical issues associated with modern constitution-making.  Part I asks: Why make a constitution?  Part II examines the definition of the people for and perhaps by whom the constitution is being made, and Part III turns to questions about the inclusiveness of the constitution-making process.  Part IV takes up questions about the scope and comprehensiveness of the constitution.  The conceptual and practical role played by the “constituent power” in constitution-making is a pervasive theme.

Property and Change: The Constitutional Conundrum

Laura S. Underkuffler

91 Texas L. Rev. 2015

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The protection of property is of unquestioned importance in human lives.  It is therefore no surprise that the threat of collective action that will affect one’s property is an emotionally charged issue.  In the United States, the most well-known legal battleground for litigating the question of property rights and change is the Takings Clause of the Fifth Amendment of the Constitution.  Despite a sustained effort by the Supreme Court to articulate governing principles in this area of the law, the jurisprudence that has emerged remains largely incoherent, and of “essentially ad hoc, factual” decisionmaking.  In analyzing this inadequate treatment, Professor Underkuffler argues that it is the collision of the idea of property with the idea of change that is to blame.  The Court has been unwilling or unable to intellectually reconcile the incompatibility of the ideas of property and change that lies at the core of its incoherent takings jurisprudence.  The unique characteristics of property as a right—its rivalrous nature and its meaning as protection—have made the idea of competing interests uniquely difficult to accommodate intellectually in this context.  Rather than acknowledge and deal openly with this problem, the Court has attempted to mask it in various ways.  This myopic view of property rights and change has led to an artificially concrete idea of property, which ignores the existence and merit of competing public interests.

Coercion, Compulsion, and the Medicaid Expansion: A Study in the Doctrine of Unconstitutional Conditions

Mitchell N. Berman

91 Texas L. Rev. 1283

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The Supreme Court’s feverishly anticipated decision in National Federation of Independent Business v. Sebelius regarding the constitutionality of the Patient Protection and Affordable Care Act (“Obamacare”) produced three main holdings concerning two critical provisions of the Act.  The first two holdings concerned the “individual mandate” that requires most Americans to maintain “minimum essential” health insurance.  The third holding concerned “the Medicaid expansion,” which expanded the class of persons to whom the states must provide Medicaid coverage as a condition for receiving federal funds under the Medicaid program. In a 7–2 decision, the Court struck down this provision as an impermissible condition on the provision of federal funds to the states.  Of these three holdings, the third—concerning what is often called Congress’s “conditional spending power”—is apt to have the most far-reaching consequences beyond health care.

In this Article, Professor Berman advances four main arguments.  First, insofar as the majority rested its holding of unconstitutionality on the ground that the amount of funds that a state would lose by not agreeing to the condition was so great as to compel the states to accept, that is a highly dubious rationale.  Second, it does not necessarily follow that the Court’s bottom-line conclusion was wrong.  A more promising rationale for that conclusion would be the one merely hinted at by the Chief Justice: Congress’s threat to withhold all Medicaid funds from a state if it did not agree to provide for a new class of beneficiaries would constitute the constitutional wrong of coercion if animated or infected by a bad purpose.

Third, the basic principles that govern whether a conditional spending offer from the national government to the states is unconstitutionally coercive are not particular to the conditional spending context.  Instead, they lie at the heart of a general solution to the ubiquitous puzzle of “unconstitutional conditions”—that is, the puzzle regarding whether and under what circumstances it is constitutionally permissible for government to condition a benefit on an offeree’s exercising or not exercising its constitutional rights in some preferred way.  Fourth, application of these general “trans-substantive” principles to the instant case suggests that the Medicaid expansion probably was coercive and therefore the Court was probably right—though not for the reasons it gave—to hold that that provision exceeds our best understanding of constitutional limits on Congress’s power.

Deference Lotteries

Jud Mathews

91 Texas L. Rev. 1349

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When should courts defer to agency interpretations of statutes, and what measure of deference should agencies receive?  Administrative law recognizes two main deference doctrines—the generous Chevron standard, and the stingier Skidmore standard—but Supreme Court caselaw has not offered a bright-line rule for when each standard applies.

Many observers have concluded that courts’ deference practice is an unpredictable muddle.  This Article argues that it is really a lottery, in the sense the term is used in expected utility theory.  Agencies cannot predict which deference standard a court will apply or with what effect, but they have a sense for how probable the different possible outcomes are.  This Article presents empirical support for the “deference lottery” hypothesis, and then conducts a simple game theory analysis to understand how judicial review bears on agency behavior in statutory interpretation under deference lottery conditions.

The Article concludes that, in fact, the deference lottery can function as a flexible tool for managing agency behavior.  The lottery can curb agency opportunism by imposing a risk that agencies’ interpretations of statutes will face elevated scrutiny rather than Chevron deference.  This analysis offers a new perspective on deference doctrine, and in particular on the Supreme Court’s Mead decision, which sets out the standard for when Chevron applies.  Mead’s vagueness, widely derived as a bug, may in fact be a feature.  Still, the deference lottery can backfire badly if Skidmore is applied too stringently, as the Article shows.

Copyright’s Cultural Turn

Anupam Chander & Madhavi Sunder

91 Texas L. Rev. 1397

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Chander and Sunder review Julie E. Cohen’s Configuring the Networked Self: Law, Code, and the Play of Everyday Practice.

Purposive Hopes for Better IP

John M. Golden

91 Texas L. Rev. 1413

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Golden reviews Christina Bohannan & Herbert Hovenkamp’s Creation Without Restraint: Promoting Liberty and Rivalry in Innovation.

Taking Hearers Seriously

Burt Neuborne

91 Texas L. Rev. 1425

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Neuborne reviews Tamara R. Piety’s Brandishing the First Amendment: Commercial Expression in America.