• Video

Are Administrative Agencies Inherently Political?

All administrative agencies have a particular mission. How the mission is enacted or perceived can be politically motivated. Professor David Bernstein argues that the staffers at these agencies may not be political but they do necessarily subscribe to the mission of the agency. Agency staff are more concerned with advancing the policies of the agency than they are about Constitutional considerations. https://youtube.com/watch?v=6qgrGaU1rl0


If you are a judge, you know that your obligation is to balance the policies that Congress has passed or that are articulated in agencies, by agencies, based on those Congress has passed against the Constitutional rights that someone may raise and that your job is both to enforce the law, but also to enforce the higher law of the Constitution. People who work for agencies have a very different perspective. Their job is not to worry about the Constitution, is not to worry about Constitutional rights, is not to worry about countervailing Constitutional considerations. Their job is to enforce whatever type of law that they're charged with enforcing. Environmental law, civil rights law, labor law, it doesn't matter. And moreover, the people who tend to go to work for these agencies are people who tend to be true believers or just believers in the mission of the agency. So these are the people who are potentially among the worst positioned to consider what policies should be enacted that would have Constitutional status of some sort that would be sort of background norms against which we live our lives because they don't take the text of the Constitution seriously, or Supreme Court precedent seriously - not because they're bad people, but just because, unlike judges, it is not their job to do so. And they're not really objective observers in some sense, and not representing the public as a whole, as some of the pro administrative Constitutional scholars seem to suggest they really are. Why does the EPA exist? It exists to regulate the environment, not to balance the interests of different groups. Why does the EEOC exist? It exists to enforce civil rights law. Again, the people who work for these agencies tend to also believe in those missions, and even if they don't believe in those missions, if they want Congress to continue to fund them, they better support those missions publicly in the way that their constituent groups who go to Congress will continue to ask Congress to fund them and give them more money. So these agencies have a strong bias in favor of broad interpretations of the law in favor of interpreting constitutional values to include the missions of their agencies and very little interest in worrying about the first amendment or due process or other constitutional provisions or doctrine that may inhibit them.

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