Brian Lipshutz (University of Chicago – Law School) has posted Administrative Self-Constitutionalism (94 U. Chi. L. Rev. ___ (forthcoming)) on SSRN. Here is the abstract:
Since the days of the Interstate Commerce Commission, federal agencies have generally refused to address the constitutionality of statutory provisions. They have offered little reasoning to justify that refusal, yet scholars have generally accepted it. This Article explains why agencies can-and should-address constitutional challenges to statutory provisions.
Agencies have the power to assess the constitutionality of statutory provisions. They already exercise a similar authority when they apply the canon of constitutional avoidance and consider the constitutionality of individual actions. There is no basis for stopping short of addressing challenges to statutes. And many scholars have recognized that, as a formal matter, the President should disregard unconstitutional statutes because the Constitution takes priority. The same structural and historical arguments support a corresponding power of agencies to review the constitutionality of statutes. Indeed, a previously neglected executive-branch opinion from the late nineteenth century reflects that understanding.
Moreover, as a normative matter, agencies should review the constitutionality of statutory provisions. Administrative self-constitutionalism follows from the theory of administrative constitutionalism, which views agencies as central participants in interpreting and applying the Constitution. Administrative self-constitutionalism also aligns with constitutional critiques of the scope of administrative power. And as a formal matter, the power to address the constitutionality of statutes implies a duty to do so. Although administrative self-constitutionalism poses some risk of abuse, the courts can adequately mitigate that risk.