Metzger on "Administrative Constitutionalism"

Although it sounds more in administrative law than constitutional history, because of Jerry L. Mashaw’s Creating the Administrative Constitution: The Lost One Hundred Years of Administrative Law (Yale University Press, 2012) and the articles (e.g., here and here) and forthcoming book (The Workplace Constitution from the New Deal to the New Right [Cambridge University Press, 2014]) of Sophia Z. Lee (Penn Law), Gillian Metzger’s recently posted Administrative Constitutionalism ought to be noticed here.  (Metzger's article is forthcoming in the Texas Law Review 91 [June 2013].)  Here is the abstract:

Administrative constitutionalism is increasingly becoming a central subject of study. Administrative constitutionalism includes not just the application of established constitutional requirements by administrative agencies, but in addition the elaboration of new constitutional understandings by administrative actors and the construction of the administrative state. This attention to administrative constitutionalism is overdue, as it represents a main mechanism by which constitutional meaning is elaborated and implemented today. But recently offered examples of administrative constitutionalism are notably divergent, suggesting a need for some exegesis of administrative constitutionalism's different dimensions.

Identifying administrative constitutionalism's various forms highlights the challenges confronting it as a form of constitutional interpretation. Central to these is a legitimacy dilemma: What justifies administrative efforts to move the nation beyond recognized constitutional requirements to develop new constitutional understandings, especially if doing so means pushing at the limits of agencies' delegated authority and acting in ways not initiated by political leaders? In this Essay, I argue that administrative constitutionalism in fact represents a particularly legitimate and beneficial form of constitutional development. But the accountability challenges it poses are real, particularly given the frequent difficulty involved in identifying instances of administrative constitutionalism in action. Agencies' constitutional engagement occurs in the context of implementing programs and enforcing statutes, and often agencies do not expressly engage with the constitutional dimensions of their actions - indeed, these dimensions may only become apparent over time. Similarly, courts are rarely open about the constitutional or law-creative aspects of their development of administrative law. Given administrative constitutionalism's attenuated democratic accountability, greater transparency about this method of constitutional development is essential for its legitimacy.