Embracing Administrative Constitutionalism

Administrative agencies engage in constitutionalism. They resolve questions of statutory meaning and scope that implicate constitutional questions. Even when agencies do not consciously set out to weigh in on constitutional questions, by interpreting and applying statutes that rest on constitutional values, agencies elaborate constitutional meaning.Should courts and theorists embrace or resist administrative constitutionalism? For those who believe that the courts are the exclusive and final interpreters of the Constitution, it seems natural to oppose it. Thus, over the past forty years, the Supreme Court has resisted administrative constitutionalism. When agencies elaborate constitutional meaning in their interpretation of statutes, the Court has denied them the deference ordinarily required by administrative law doctrine.In this Article, I argue that administrative constitutionalism should be embraced. The Constitution's vague text must be adapted to changing societal contexts if it is to remain viable. Judicial constitutionalism has adapted the meaning of the Constitution to new societal contexts by adjusting constitutional principles derived from text. This form of constitutionalism, however, is limited in its capacity to update constitutional meaning. Justices are more than ever detached from the changing societal context, and the People lack the opportunity to engage in informed deliberation about the application of constitutional principles in these new contexts.Administrative constitutionalism offers a critical supplement to judicial constitutionalism in adapting the Constitution to changing societal contexts. When judicial and agency applications of constitutional principles coexist, a process that I call "constitutional experimentation" takes place. Experimentation advances constitutional adaptation by allowing the operative effects of various constitutional applications to be tested. The People can then pressure courts and agencies to adopt constitutional applications that best advance constitutional principles in particular societal contexts.INTRODUCTIONIn the 2005 case of Smith v. City of Jackson,1 uber-conservative Justice Antonin Scalia found himself in the strange position of advocating a liberal Equal Employment Opportunity Commission ("EEOC") interpretation of a civil rights statute.2 The EEOC had interpreted the Age Discrimination in Employment Act ("ADEA")3 to prohibit employment actions that disproportionately injured older workers, even if they were not intentionally discriminatory.4 As Justice Scalia pointed out, under the prevailing doctrinal standard, the Court should have deferred to the agency's interpretation of the ambiguous statute.5 Yet no other Justice joined Scalia's opinion. The other conservative Justices and the four more liberal Justices independently examined the text, purpose, legislative history, and the Court's own precedent to arrive at opposite conclusions about the meaning of the statute.6 The one thing on which the seven Justices, besides Justice Scalia, agreed was that the EEOC's interpretation did not merit deference.7The Court's failure to defer in Smith was not unique. In fact, the Court has frequently deviated from its own deference doctrine to deny deference to agencies' substantive interpretations of civil rights statutes implicating similar questions. The Court has refused to give any special weight to agencies' statutory interpretations on such issues as the meaning of discrimination, the evidentiary requirements under the disparate impact standard, and the classes of persons entitled to special legal protection as members of discrete and insular groups, apparently because these issues are related to longstanding constitutional controversies.8This pattern represents the Court's resistance to administrative constitutionalism. When agencies resolve questions of statutory meaning that implicate deeper constitutional questions, they are engaged in "administrative constitutionalism"? …