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Lee uncovers history of administrative agencies interpreting the Constitution in new article

January 06, 2020

Many conservative legal scholars and jurists contend that the expansive authority of modern administrative bodies like the Environmental Protection Agency and the Federal Trade Commission — and judicial deference to that authority — violates the traditional American constitutional order. However, a new article by University of Pennsylvania Law School Professor Sophia Z. Lee illuminates the long history of agencies exercising an important but overlooked power: interpreting the Constitution with little oversight from the Courts, Congress, or the President.

Lee is a legal historian whose scholarship synthesizes constitutional and administrative law. She has written about administrative agencies’ role in shaping constitutional law; civil rights and labor advocates’ challenges to workplace discrimination during the early Cold War; and conservative legal movements in the post-New Deal era.

In the present day, administrative agencies like the EPA, FTC, and others exercise significant regulatory authority and enjoy considerable judicial deference to their actions and interpretations of constitutional and statutory law. In “Our Administered Constitution: Administrative Constitutionalism from the Founding to the Present,” in the University of Pennsylvania Law Review, Lee illuminates the history of constitutional interpretation by agency administrators, offering a corrective to the arguments of legal scholars and jurists who seek to rein in the powers of the modern administrative state by pointing to the 19th Century as a period of time when courts exercised an appropriately high level of oversight.

“At a general level, critics who argue for a return to 19th-century administrative law emphasize several features said to characterize the period. First, they argue that Congress legislated with far greater specificity, granting agency actors little to no discretion to adopt regulations that bound the public[,]” writes Lee. “Second, they contend that Congress tasked courts, not agencies, with enforcement of the most coercive policies. Third, they argue that, other than during the mid-nineteenth century, federal courts reviewed agency action for its comportment with the law. Fourth, in conducting that review, courts gave weight to executive branch interpretations if they were longstanding or contemporaneous to the law’s enactment, but, they contend, ‘there was … no general rule … requiring ‘deference’ to executive interpretation qua executive interpretation.’”

However, Lee’s review of the history of agency action from the founding of the country to the present suggests that “agencies, not the courts, took the lead in interpreting the Constitution during the 19th Century,” and that in fact, “courts hardly reviewed the constitutionality of agency action at all[.]”

Before the Civil War, the Supreme Court rarely if ever reviewed the constitutionality of agency action and only considered that of federal laws in 62 cases, most decided after 1830. Congress also debated the constitutionality of particular laws, such as the Sedition Act. But the instances in which agencies confronted constitutional questions exceeded those faced by the courts or Congress. As a result, Lee argues, the norm tended to be that “ordinary administrators, from Secretaries of State down to local customs collectors, … decided what the Constitution meant in practice.” 

“Congress and the courts, when they weighed in on constitutional questions during this period, often codified answers worked out in the first instance by administrators,” writes Lee. “For example, the 1790 Indian Trade and Intercourse Act, the act that left the executive branch with such broad discretion to determine federal control of Indian affairs, was itself drafted by the administration and enacted by Congress with little debate.”

Through Reconstruction and the Gilded Age, the administrative state enlarged with the advent of institutions like the Bureau of Refugees, Freedmen, and Abandoned Lands (Freedmen’s Bureau) and the departments of agriculture, labor, justice, and education, and the Interstate Commerce Commission. Judicial review of the constitutionality of agency action was rare during this period. “Agencies, meanwhile, seem to have been actively engaged with the Constitution,” as a search of agency decisions showed that agencies heard and decided a range of constitutional structure and rights issues during the course of their adjudications.  

During the Progressive Era, from 1900 to 1933, the administrative state continued to grow with the creation of agencies like the FTC and the granting of new responsibilities to existing agencies, as when the Department of Agriculture was tasked with regulating food and drugs. In this period, “courts stepped up their review of administration, particularly regarding the constitutional limits on agency action.” There remained, however, “pronounced limits on this newly robust judicial oversight, leaving agencies striking discretion regarding the scope of constitutional protections.”

Only after World War II did administrative constitutionalism become “more legalistic and more deferential to judicial doctrine. At the same time, while congressional and presidential oversight of the phenomenon remains relatively weak, courts have expanded their constitutional review of agencies and heightened their skepticism toward administrative constitutionalism.”

“Based on what is known thus far, it seems that for much of the United States’ history, agencies had a relatively free hand in implementing constitutionally sensitive policies, resolving structural constitutional questions, and determining what the Constitution’s rights-bearing provisions meant in practice,” writes Lee. Thus, while “[t]here may be good reasons for courts to more closely scrutinize and conclusively determine the constitutionality of agency action[,] those reasons will have to be grounded in changed circumstances or independent normative and theoretical principles. Reinstating the 19th-century constitutional order will if anything take us further from that goal.”

The article is available here.