The Constitutional Duty to Supervise Abstract

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Gillian e. metzger

The Constitutional Duty To Supervise abstract. The IRS targets Tea Party organizations’ applications for nonprofit tax-exempt status for special scrutiny. Newly opened online federal health exchanges fail to function. Offi- cials at some Veterans Administration hospitals engage in widespread falsification of wait times. A key theme linking these examples is that they all involve managerial and supervisory failure. This should come as no surprise. Supervision and other systemic features of government administration have long been fundamental in shaping how an agency operates, and their importance is only more acute today. New approaches to program implementation and regulation mean that a broader array of actors is wielding broader discretionary governmental authority. The centrality of systemic administration in practice contrasts starkly with its virtual exclusion from contemporary U.S. constitutional law. This exclusion of administration takes a variety of doctrinal guis- es, but it surfaces repeatedly in both structural and individual rights contexts. This Article argues that the exclusion of systemic administration from constitutional law is a mistake. This exclusion creates a deeply troubling disconnect between the realities of government and the constitutional requirements imposed on exercises of governmental power. Just as importantly, the current doctrinal exclusion of administration stands at odds with the Constitu- tion’s text and structure, which repeatedly emphasize one particular systemic administrative fea- ture: supervision. This emphasis on supervision is most prominently manifest in Article II’s Take Care Clause, but it also surfaces more broadly as a constitutional prerequisite of delegation of governmental power. Whether it is rooted in Article II, general separation of powers princi- ples, or due process, a duty to supervise represents a basic precept of our federal constitutional structure. Moreover, concerns about judicial role do not justify the Court’s refusal to engage with systemic administration, and judicial recognition of a constitutional duty to supervise is critical even if the duty is entirely politically enforced. Indeed, recognizing a constitutional duty to supervise is as central to the overall project of constitutional interpretation as it is to the aim of better key- ing constitutional law to the realities of contemporary governance. Recognizing this duty under- scores the need for greater attention to how courts can support constitutional enforcement by the other branches and highlights the porous and critical relationship between constitutional and subconstitutional law. author. Stanley H. Fuld Professor of Law, Columbia Law School. Special thanks to Barry Friedman, Rob Jackson, John Manning, Jerry Mashaw, Jon Michaels, Henry Monaghan, Trevor Morrison, Jeff Powell, Bill Simon, Richard Squire, Kevin Stack, Adrian Vermeule, David Zaring, and participants at faculty workshops at American, Columbia, and Northwestern law schools and the University of Pennsylvania Wharton School. Perrin Cooke and Evan Ezray provided outstanding research assistance.

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the constitutional duty to supervise

article contents introduction 1839 i. the mismatch of constitutional law and governmental reality 1846 A. Administration and Supervision 1846 B. Administration’s Contemporary Centrality 1849 1. Privatization 1849 2. Cooperative Federalism 1852 3. Crisis Governance and Presidential Administration 1855 C. Constitutional Law’s Exclusion of Administration 1859 1. Structural Constitutional Law: Standing Doctrine and the Separation of Powers 1859 2. Individual Rights: The Eighth Amendment, Due Process, and Restrictions on Liability for Failed Supervision 1863 a. Eighth Amendment and Due Process 1864 b. The Denial of Supervisor Liability 1867 D. Recurrent Themes 1870 E. Administrative Law and Systemic Administration 1871 ii. rethinking administration’s constitutional status: the constitutional duty to supervise 1874 A. Article II and the Duty To Supervise 1875 1. The Take Care Clause and the Textual Basis for a Duty To Supervise 1875 2. Hierarchical Oversight and Article II 1879 3. Hierarchical Oversight and Executive Branch Supervision in Practice 1882 B. Delegation, Accountability, and the Duty To Supervise 1886 1. Delegated Authority and the Hierarchical Oversight Model 1887 2. Supervision and Accountability of Delegated Authority 1890 3. The Alternative of Judicial Review 1897 C. The Scope of the Duty To Supervise 1899 D. Judicial Enforceability and Judicial Supremacy 1904 1. Article III and Political Question Barriers 1905 2. Departmentalism in a World of Judicial Supremacy 1910

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the yale law journal 124:1836 2015 iii. implementing the constitutional duty to supervise 1912 A. Direct Judicial Enforcement 1913 1. Privatization 1913 2. Institutional Reform Litigation 1915 3. Bivens and Duty-To-Supervise Claims 1917 B. Administrative Law and the Duty To Supervise 1918 1. Federal-State Cooperative Programs 1920 2. Crisis Governance 1923 3. Presidential Administration 1925 C. The Duty To Supervise in the Political Branches 1927 conclusion 1932

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the constitutional duty to supervise introduction

The Internal Revenue Service (IRS) targets applications for nonprofit tax- exempt status by organizations using the name “Tea Party” for special scrutiny.1 The National Security Agency (NSA) repeatedly violates governing privacy requirements and oversteps its authority in conducting surveillance.2 Re- cently opened online federal health exchanges fail to function, preventing individuals from signing up for health insurance or determining their eligibil- ity for benefits.3 Officials at some Veterans Administration (VA) hospitals ma- nipulate data to hide long delays in scheduling appointments, and there are al- legations that some veterans died while on waiting lists.4 A key theme that links these examples is that they all involve managerial and supervisory failure. Most commonly, the problem is too little supervision,5 but sometimes the concern is too much supervision or supervision of the wrong kind.6 The Obama Administration’s experience is hardly unique; simi-

1. See Jonathan Weisman, Management Flaws at I.R.S. Cited in Tea Party Scrutiny, N.Y. TIMES, May 14, 2013, http://www.nytimes.com/2013/05/15/us/politics/report-on-irs-audits -cites-ineffective-management.html [http://perma.cc/C4FN-FL6M]. 2. Barton Gellman, NSA Broke Privacy Rules Thousands of Times Per Year, Audit Finds, WASH. POST, Aug. 15, 2013, http://www.washingtonpost.com/world/national-security/nsa-broke -privacy-rules-thousands-of-times-per-year-audit-finds/2013/08/15/3310e554-05ca-11e3-a07f -49ddc7417125_story.html [http://perma.cc/3U5B-TC6W]. 3. See Robert Pear et al., From the Start, Signs of Trouble at Health Portal, N.Y. TIMES, Oct. 12, 2013, http://www.nytimes.com/2013/10/13/us/politics/from-the-start-signs-of-trouble-at -health-portal.html [http://perma.cc/JL7M-G6D6]. 4. See Richard A. Oppel Jr. & Michael D. Shear, Severe Report Finds V.A. Hid Waiting Lists at Hospitals, N.Y. TIMES, May 28, 2014, http://www.nytimes.com/2014/05/29/us/va-report -confirms-improper-waiting-lists-at-phoenix-center.html [http://perma.cc/73JM-BR9F]. 5. See Carol D. Leonnig, Court: Ability To Police U.S. Spying Program Limited, WASH. POST, Aug. 15, 2013, http://www.washingtonpost.com/politics/court-ability-to-police-us-spying -program-limited/2013/08/15/4a8c8c44-05cd-11e3-a07f-49ddc7417125_story.html [http:// perma.cc/9XWB-4JJK] (discussing limits on the oversight capacity of the Foreign Intelli- gence Surveillance Court); Oppel & Shear, supra note 4 (noting that an investigation re- vealed VA hospital administrators were responsible for manipulating waiting lists); Pear et al., supra note 3 (noting the limited capacity of the agency overseeing development of the federal health exchange); Weis