Administrative Constitutionalism

The U.S. Food and Drug Administration adopts a rule requiring tobacco companies to include graphic images warning of the health risks associated with smoking, defending the rule at length against the claim it violates the First and Fifth Amendments. The Department of Education and the Department of Justice (DOJ) jointly issue guidance explaining how elementary and secondary schools can voluntarily consider race consistently with governing constitutional law. The Office of Legal Counsel (OLC) in DOJ issues a memorandum to the Attorney General concluding that the President had constitutional authority to commit U.S. forces as part of the NATO military campaign in Libya and did not need prior congressional approval. These are three recent examples of administrative constitutionalism, in that they involve actions by federal administrative agencies to interpret and implement the U.S. Constitution. Indeed, despite their contentious subject matter, all three are relatively straightforward instances of administrative constitutionalism: the claims at issue involve well-established constitutional requirements, and the agencies expressly engaged with these requirements, relying heavily on Supreme Court constitutional jurisprudence in doing so. Such instances of administrative constitutionalism are a frequent occurrence, reflecting the reality that most governing occurs at the administrative level and thus that is where constitutional issues often arise