Antidiscrimination Laws and the Administrative State: A Skeptic's Look at Administrative Constitutionalism

David E. Bernstein*

One might think that executive branch agencies, as such, should have little if any role to play in establishing the boundaries of constitutional law. Some legal scholars, however, beg to differ. These scholars have increasingly noted and praised the phenomenon of administrative constitutionalism, “the creative interpretation and evolution of legal norms and moral-rights claims by bureaucrats faced with pressure from social movements, often operating beyond or even despite the commands of the President, Congress, or the courts.”¹

Administrative constitutionalism includes 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.”² Professor Ernest Young concludes that courts do not resolve most important constitutional questions. Rather, various government actors, including administrators, rely on their own interpretations of constitutional norms and values.³ These administrators, in turn, may ignore not just Supreme Court precedent, but the text of the Constitution itself.

Prominent historical examples of administrative constitutionalism include the National Labor Relations Board (NLRB) and the Federal Communications Commission (FCC) developing novel antidiscrimination rules not mandated by statute. These rules were premised on the notion that the Constitution protected a right to nondiscrimination in employment in closed shops and in a government licensed communications entity, respectively.⁴ The NLRB and FCC enforced antidiscrimination policies even though Congress and the courts studiously ignored the issue, and even though the Supreme Court showed no inclination to apply constitutional equal protection principles to the private actors involved.⁵

Even when courts have addressed constitutional questions, judges may be influenced by the constitutional norms developed by agencies in the relevant area of law.⁶ For example, Professor Anuj Desai documents that “it was the post office—not the Fourth Amendment of its own independent force— that originally gave us the notion of communications privacy that we now view as an abstract constitutional principle applicable to telephone conversations, e-mails, and the like.”⁷ Similarly, Professor Karen Tani has shown that starting in the 1930s, “federal administrators sought to embed a more robust idea of constitutional equal protection into the realm of social welfare, relying on a statute that said nothing about equality or rights.”⁸ These efforts influenced the Warren Court’s forays into constitutionalizing poverty law, such as Goldberg v. Kelly,⁹ which announced a constitutional right to a hearing before a claimant’s public assistance benefits could be discontinued.

Continue reading in the print edition . . .

© 2019 David E. Bernstein. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*University Professor, Antonin Scalia Law School, George Mason University. The author benefited from comments provided by various eminent scholars at the Center for the Study of the Administrative State’s (“CSAS”) Research Roundtable held on October 27, 2017. Laura Donohue, John Eastman, Eugene Volokh, and Martin Redish provided especially helpful input. The author also benefited from comments by Jonathan Adler, Samuel Bagenstos, Shep Melnick, and Tamara Piety at CSAS’s Free Speech and the Administrative State conference held on January 26, 2018; and from feedback received at Georgetown University Law School’s Constitutional Theory workshop held on February 6, 2018; and the University of Pennsylvania Law Review’s conference on The History, Theory, and Practice of Administrative Constitutionalism, held on October 19–20, 2018, especially from Olatunde Johnson, Shirin Sinnar, and Karen Tani.

1 K. Sabeel Rahman, Domination, Democracy, and Constitutional Political Economy in the New Gilded Age: Towards a Fourth Wave of Legal Realism?, 94 Tex. L. Rev. 1329, 1352 (2016).

2 Gillian E. Metzger, Administrative Constitutionalism, 91 Tex. L. Rev. 1897, 1900 (2013).

3 See Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 411–12 (2007).

4 See Sophia Z. Lee, The Workplace Constitution from the New Deal to the New Right 42 (2014); Sophia Z. Lee, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, 96 Va. L. Rev. 799, 813–16 (2010). See generally Cynthia Estlund, How the Workplace Constitution Ties Liberals and Conservatives in Knots, 93 Tex. L. Rev. 1137, 1138 (2015) (reviewing Lee, supra) (noting that private sector employees lack federal constitutional employment rights because private employers are not state actors); Gillian E. Metzger, Essay, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479, 517 (2010) (“[C]onstitutional law frequently surfaces in ordinary administrative law in a highly indeterminate form; constitutional concerns shape administrative law doctrines and lie in the background of numerous administrative enactments, but often the precise scope of the constitutional requirements involved remains opaque.”).

5 See Lee, supra note 4.

6 See William N. Eskridge Jr. & John Ferejohn, A Republic of Statutes: The New American Constitution 33–34, 65–74 (2010); Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 Stan. L. Rev. 553, 568 (2007); Jeremy K. Kessler, The Administrative Origins of Modern Civil Liberties Law, 114 Colum. L. Rev. 1083, 1092–93 (2014); Lee, supra note 4, at 801–06, 809–10; Reuel E. Schiller, Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment, 86 Va. L. Rev. 1, 18–19 (2000); Karen M. Tani, Welfare and Rights Before the Movement: Rights as a Language of the State, 122 Yale L.J. 314, 321–23 (2012). Adrian Vermeule argues that courts should affirmatively defer to agencies’ determinations that they have complied with constitutional due process requirements. He writes that “courts should ask only whether the agency offered a rational justification for providing whatever process it chose to provide.” Adrian Vermeule, Essay, Deference and Due Process, 129 Harv. L. Rev. 1890, 1893 (2016).

7 Desai, supra note 6, at 557.

8 Karen M. Tani, An Administrative Right to Be Free from Sexual Violence? Title IX Enforcement in Historical and Institutional Perspective, 66 Duke L.J. 1847, 1881 (2017); see also Tani, supra note 6, at 343–45, 361–68, 378 (examining the emergence and use of rights talk in the administration of federal public assistance).

9 397 U.S. 254, 261 (1970).