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To some, the very idea of the constitutional law of the administrative state is an oxymoron. On this view, core features of the national administrative state — broad delegations and the combination of legislative, executive, and judicial power within administrative agencies, particularly agencies that are headed by unelected executive officials only removable on narrow grounds — are fundamentally at odds with both constitutional separation of powers principles and due process. To others, no such conflict between contemporary administrative governance and the Constitution exists, and assertions of the administrative state’s unconstitutionality rest on basic misunderstandings of what separation of powers and due process require. One point on which both camps agree, however, is that the Supreme Court’s separation of powers jurisprudence is inconsistent and even incoherent, marked by strikingly different methodologies and too little connection to its constitutional underpinnings. The courts, not surprisingly, find their precedents provide clearer guidance than outside commenters do, and courts are more content to decide on a case-by-case basis, sidestepping broader and more difficult questions as they go.

In this chapter, I argue that there is some truth to all of these claims. Modern administrative arrangements are hard to square with a pure separation of powers system that sharply separates different forms of power and assigns each of the three branches a distinct function to which it is confined. But while the Constitution contains aspects of such a divided system, it also contains prominent instances of intermixing among the branches, as well as elements that allow for flexibility and change. More important, the Constitution says remarkably little about the shape of federal administration, and what it does say is often indeterminate. Similarly, although reigning jurisprudence on the constitutionality of the administrative state displays striking methodological contrasts, there are also clear descriptive and analytic themes that link this disparate jurisprudence. And the Constitution’s indeterminacy — along with the political and institutional realities of governance — may forestall much greater substantive consistency than the Court has so far supplied.


Administrative Law | Constitutional Law | Law