an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In February of this year, Stephen Reinhardt became the first federal judge to rule that section 7 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7 (2009), violates the Fifth Amendment’s equal protection provisions. Section 7 defines marriage for purposes of interpreting federal laws, regulations, rules, or agency interpretations to include only heterosexual unions. Judge Reinhardt issued his ruling after a federal public defender, Brad Levenson, argued that his employer violated Levenson’s constitutional rights when it determined that, because of DOMA’s definition of marriage, Levenson could not add his husband to his federal employee benefits. Remarkably, Reinhardt made this path-breaking ruling not on behalf of the United States Court of Appeals for the Ninth Circuit, but as the chairman of the Ninth Circuit’s Standing Committee on Federal Public Defenders. In other words, Reinhardt was acting as an administrator, not as a judge.
Since the inception of the Constitution in 2020 project, there has been spirited debate about whether courts or legislatures, national or subnational constitutions, and national or transnational adjudicative bodies are best suited to deliver progressive constitutional goals by the year 2020. I’d like to turn the conversation to an institution that has been largely absent from the Constitution in 2020 debates: administrative agencies. Judge Reinhardt was not the first federal administrator to adopt a more progressive understanding of equal protection than most federal judges. During the 1960s and 1970s, administrators in a range of agencies advocated for, and adopted policies based on, a broader conception of state action and a more affirmative understanding of the government’s equal protection obligations than was found in the judicial opinions of the day.
For instance, in the 1960s and 1970s, administrators adopted the view that equal protection obligated agencies such as the Federal Communications Commission (FCC) to require that the businesses they regulated ensure equal employment. Even more surprising, administrators deemed regulated businesses—otherwise private companies—state actors with an independent obligation to ensure equal employment. The FCC ultimately adopted equal employment rules to this effect. Decades later, despite drastic changes in the Supreme Court’s equal protection doctrine and lengthy Republican control of the White House, even after the D.C. Circuit Court of Appeals struck the FCC’s equal employment rules down as a violation, rather than a vindication, of the Fifth Amendment’s equal protection provisions, the FCC still described its rules as implementing equal protection.
The Constitution’s life in administrative agencies has largely escaped the notice of constitutional scholars, political scientists, and historians of the United States. But progressives should consider administrators’ role in shaping the Constitution in 2020, because administration may be an underappreciated means of both achieving a progressive Constitution in 2020, and of preserving it in the decades that follow. Indeed, in the area of LGBT rights, interesting parallels with the equal employment rulemaking of the past are already emerging.
Initially, presidential policy inspired administrators to push for equal employment rules, but they nurtured their constitutional argument for these rules outside public view. Administrators first gestated the idea that equal protection mandated equal employment by regulated industries in the early 1960s. The inception of this constitutional policy followed in the footsteps of President Kennedy’s broader effort to use executive action to ensure non-discrimination in hiring by federal agencies and government contractors, an effort that was made at a time when legislative action seemed extremely unlikely. During this time, the constitutional argument for equal employment rules was the subject of internal memoranda, not public statement.
Over the 1960s, presidents, their priorities, and their parties changed, but the view that equal employment rules would implement equal protection persisted, even thrived, within administration. Indeed, when the FCC adopted equal employment rules in the late 1960s, it did so despite, rather than because of, President Nixon. The FCC also maintained its equal employment rules through the Reagan years, and defended them under George W. Bush. The administered Constitution, it appears, can not only instantiate particular constitutional understandings, but also preserve them.
This history suggests that administration offers opportunities for achieving a progressive Constitution in 2020, and for preserving it thereafter. In fact, there are already interesting parallels between LGBT rights today and the equal employment rulemaking of yesterday. As in the early 1960s, progressives are using administration—either by working from within, or advocating from without, to achieve progressive constitutional goals, most notably the equal treatment of same-sex couples. Brad Levenson’s grievance, which led to Judge Reinhardt’s DOMA decision, is one such example.
But there are also signs that equal protection concerns are influencing—or are ripe for introduction to—a range of administrative agencies. For instance, the Commerce and State Departments have both recently announced policies giving more equal treatment to same-sex couples. Meanwhile, the Office of Personnel Management (OPM) has vocally supported extending full benefits to the same-sex partners of federal employees.
So far, as occurred during the early stages of equal employment rulemaking, these policy changes are closely tied to the White House. In addition, these changes have not been publicly justified in constitutional terms. The history of equal employment rules, however, suggests that administrators’ commitment to equal treatment for same-sex couples, like their earlier commitment to equal employment opportunity, may yet ripen into constitutionally based policies.
Brad Levenson and Judge Reinhardt are not alone in pursuing equal treatment through administrative action. The history of equal employment rules suggests that such actions can lead to significant and durable policies implementing the Constitution, including in ways that diverge from or even conflict with court constitutionalism. The life of the Constitution in administrative agencies merits the attention of constitutional theorists and should be part of the Constitution in 2020 conversation.