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Individual Rights, Judicial Deference, and Administrative Law Norms in Constitutional Decision Making

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Individual Rights, Judicial Deference, and Administrative Law Norms in Constitutional Decision Making University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln College of Law, Faculty Publications Law, College of 12-2011 Individual Rights, Judicial Deference, and Administrative Law Norms in Constitutional Decision Making Eric Berger University of Nebraska College of Law, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/lawfacpub Berger, Eric, "Individual Rights, Judicial Deference, and Administrative Law Norms in Constitutional Decision Making" (2011). College of Law, Faculty Publications. 165. https://digitalcommons.unl.edu/lawfacpub/165 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in College of Law, Faculty Publications by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Boston University Law Review 91:6 (December 2011), pp. 2029-2102 INDIVIDUAL RIGHTS, JUDICIAL DEFERENCE, AND ADMINISTRATIVE LAW NORMS IN CONSTITUTIONAL DECISION MAKING ERIC BERGER* IN TROD UCTION ............................................................................................. 203 1 I. THE COURT'S INCONSISTENT APPROACH TO ADMINISTRATIVE DISCRETION IN INDIVIDUAL RIGHTS CASES ...................................... 2038 A. Deference to Agency Action ...................................................... 2038 1. Deference in Baze v. Rees and the Court's Puzzling Preference for Agency Action ............................................. 2038 2. Deference in Grutter v. Bollinger: Whither Bakke? ...... .. .. 2040 3. Deference in Korematsu v. United States and the Complication of Ex ParteEndo .......................................... 2042 4. Deference in Prison Conditions Cases and Turner v. Safley's Internal Tensions .................................................... 2045 B. HeightenedReview ofAgency Action ........................................ 2047 1. Hampton v. Mow Sun Wong and the Fact and Nature of A dm inistrative Action ..................................................... 2047 2. First Amendment Licensing Cases and the Problem of Unbridled Administrative Discretion .................................. 2049 3. Boumediene v. Bush and the Thoroughness of Adm inistrative Procedures .................................................. 2050 C. The Significance of the DoctrinalDiscrepancy ......................... 2052 II. ADMINISTRATIVE LAW NORMS IN CONSTITUTIONAL DECISION M A KIN G .............................................................................................2054 A. The Natural Intersections of ConstitutionalLaw and A dm inistrativeLaw .................................................................... 2054 B. Relevant Administrative Factors............................................... 2058 1. Political A ccountability ....................................................... 2059 Assistant Professor of Law, University of Nebraska College of Law. I thank Ginger Anders, Mike Dorf, Anne Duncan, Bill Eskridge, Brandon Garrett, Joel Goldstein, John Paul Jones, Roger Kirst, Corinna Lain, Greg McLawsen, Gillian Metzger, Richard Moberly, Jo Potuto, Eric Segall, Anna Shavers, Steve Willbom, Sandi Zellmer, Saul Zipkin, and participants in the Midwest Regional Junior Scholars Roundtable at Washington University School of Law and the Invited Speaker Series at Georgia State University College of Law for very helpful suggestions. I also thank Lori Hoetger, Mike McArthur, Erick Reitz, and Omaid Zabih for exceptional research assistance; Kris Lauber and the Schmid Law librarians for terrific help tracking down sources; and Vida Eden for excellent assistance. Finally, I thank Jake Pugh and the editors of the Boston University Law Review for excellent editorial assistance. A McCollum Research Grant provided support for this Article. Remaining errors are mine. 2029 2030 BOSTON UNIVERSITYLA W REVIEW [Vol. 91:2029 a. Legislative Guidance and Non-Delegation Princip les ...................................................................... 2061 b. Oversight ...................................................................... 2063 c. Transparency................................................................ 2065 d. The Problem of Elected AdministrativeAgents ............ 2067 2. E xpertise .............................................................................. 2067 a. Epistemic Authority ...................................................... 2068 b. Thoroughness................................................................ 2069 3. Arbitrariness, Procedural Regularity, and the Rule of L aw ......................................................................................2 0 70 a. FormalizedProcedures ................................................ 2071 b. ReasonedExplanation .................................................. 2073 C. The Factors' Place in the ConstitutionalAnalysis .................... 2074 1. Administrative Law Norms in Deference D eterm inations .................................................................... 2074 2. Applications to State Agency Policies ................................. 2077 D. ContextualNuances ................................................................... 2079 1. Contextual Limitations ........................................................ 2079 2. When Accountability and Expertise Collide ....................... 2080 III. APPLICATIONS, ADVANTAGES, AND IMPLICATIONS .......................... 2082 A . App lications ............................................................................... 2082 1. Deference Revisited ............................................................. 2082 a. B aze .............................................................................. 2082 b . G rutter ........................................................................... 2084 c. K orem atsu ..................................................................... 2087 d. Prison Condition Cases ................................................ 2091 2. Other Applications ............................................................... 2092 B . A dvantages ................................................................................ 2093 1. Constitutional Adherence .................................................... 2093 2. Democratic Accountability .................................................. 2094 3. Recognition of the Variety of Agency Action ..................... 2095 4. Doctrinal Coherence ............................................................ 2096 5. Judicial C andor .................................................................... 2097 C. Implicationsfor Constitutional Theory ..................................... 2098 C ON CLUSIO N ................................................................................................. 2 102 Administrative agencies play a crucial role in American government, so unsurprisingly,their actionssometimes threaten individual rights. Despite this threat, courts determining whether a constitutional individual right has been violated often ignore the fact and nature of administrativeaction. Indeed, in a wide range of cases alleging the violation of an individual right, the Supreme Court reflexively defers to the government without asking whether administrative officials or more directly accountable political representatives were responsiblefor the alleged infringement. Even when the Court identifies these distinctions, its treatment is inconsistentand inchoate. This Article argues that courts should more consistently and carefully consider the nature of administrative discretion when determining whether an agency has violated a substantive individual right. Instead of casually 2011] CONSTITUTIONAL DECISION MAKING 2031 conflating administrative and legislative action, courts deciding such cases should identify the relevant constitutional actor. When that actor is an agency, courts should then draw on administrative law norms to examine whether the agency deserves deference. Such an approach would help courts avoid the unjustified deference they sometimes offer agencies in individual rights cases, thus encouraging constitutionaladherence and assuring independent judicial evaluation of the alleged constitutionalinjury. INTRODUCTION In a famous, highly contested affirmative action decision, the United States Supreme Court in Regents of the University of Californiav. Bakke struck down the admissions procedure of the Medical School of the University of California at Davis.1 In announcing the judgment of the Court, Justice Powell explained that the admissions policy benefiting racial minorities was problematic in part because it reflected not a legislative preference but the medical school's own judgment about the virtues of affirmative action.2 "[I]solated segments of our vast governmental structures," Powell wrote, "are not competent to make those decisions [about affirmative action], at least in the absence of legislative mandates and legislatively determined criteria." 3 The fact that an administrativeagency, and not the state legislature, had crafted the challenged 4 policy, then, played a significant role in the Court's ruling. Twenty-five years later, the Court confronted another high-profile graduate school affirmative action case, Grutter v. Bollinger.5 In Grutter, the Court upheld the University of Michigan Law School's affirmative action admissions plan.6 Unlike the Court in Bakke, the Grutter Court seemed unconcerned that the university,
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