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Penn Law Review hosts panel discussing constitutional interpretation by administrative agencies

October 22, 2018

By Jenna Wang

On October 19, a panel of law professors convened at the University of Pennsylvania Law Review’s 2018 Symposium to discuss the history of the way that administrative agencies in the United States, like the Federal Communications Commission and the National Labor Relations Board, interpret and implement the constitution — a phenomenon known as “administrative constitutionalism.”

The event, titled “The Origins of Administrative Constitutionalism,” was moderated by Maggie McKinley, Assistant Professor of Law at Penn, and featured panelists Gregory Ablavsky L’11 Gr’16, Associate Professor of Law at Stanford; Karen Tani, Professor of Law at the University of California, Berkeley; and Sophia Lee, Professor of Law and History at Penn; along with commentator Kristin Collins, Professor of Law at Boston University. Professor Lee was the faculty sponsor of the law review’s two-day symposium,which brought together scholars from around the country to discuss and debate “The History, Theory, and Practice of Administrative Constitutionalism.” 

The panel on origins of the practice was the opening event of the symposium. The speakers discussed a wide variety of historical events that contributed to the development of administrative constitutionalism, from territory disputes in the 1790s to anti-immigration policies in the twentieth century.

Professor Ablavsky began the panel with a review of the history of administrative constitutionalism, starting from the founding of the United States. He discussed controversies relating to the Northwest Ordinances, which created the first organized territory of the United States. Disputes over military authority and the territories’ constitutional status, Ablavsky argued, showed that administrative agencies undeniably engaged in constitutional interpretation in the early history of the United States. However, he noted, the exercise of these powers was not necessarily always democratic or moral.

Professor Tani then discussed a paper she wrote that vouched for the importance of using unconventional historical sources as a method of analyzing the course of administrative constitutionalism. She argued that “accessing the voices of non-elite actors” was key in building an unbiased history of the topic, including obtaining ground-level viewpoints of historical subjects such as the Freedmen’s Bureau and the Chinese Exclusion Act.

Tani said that agencies’ procedural choices were constitutional in nature and were understood as such during periods of anti-immigration policy and Western nativism during late nineteenth century. Administrative constitutionalism actually shaped how courts understood the concept of due process at that time, she explained. Tani encouraged current scholars of administrative constitutionalism be aware of “winners and losers” throughout the topic’s history to better inform their analysis of its evolution.

Lee rounded out the panel with an analysis of the tensions between the history of administrative constitutionalism and the modern administrative state. She reviewed the ways in which administrative agencies changed the practical meaning of constitutionalism before and after two key events in American history: the Civil War and the New Deal.

In her paper, Lee argued that for most of the nation’s history, the meaning of the constitution had been worked out primarily by administrative agencies, which mainly focused on issues of federalism and the scope of Congress’s power. However, she explained, civil rights battles contributed to a view that courts were the ultimate expositor of constitutionalism, causing agencies to punt constitutional questions to the judicial system more often. Lawyers also gained prominence in agencies over time, leading to increased judicial deference.

Lee thus made the case against those who favored returning to a nineteenth century mode of administrative constitutionalism, given the historical evidence that agencies had the predominant power on deciding the outcome of constitutional issues rather than the courts, the president, or Congress.

“There are arguments to be made that we need the judicial [branch] to more closely scrutinize the work of federal agencies than they did in the nineteenth century,” she said.