The Administrative State and the Collective-Action Constitution
Guest Blogger
For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)
Jessica Bulman-Pozen
In a field that does not want for
entries, Neil Siegel has offered a powerful account of the U.S. Constitution’s
primary structural purpose. The Constitution, he argues, was established to solve
collective-action problems, including cooperation problems and coordination
problems. Because the states generally cannot solve such problems on their own,
the Constitution empowers the federal government, and Congress in particular,
to do so. Harnessing the constitutional methodology of McCulloch, Siegel
richly describes and defends what it means to understand the U.S. Constitution
as a collective-action Constitution. In addition to the usual stomping ground
of Article I, section 8, he analyzes a range of other provisions and practices,
from interstate compacts to the right to travel to national security
operations. And he offers suggestions for improving our collective-action Constitution
in a time of congressional gridlock. It is a great achievement, a book I will
happily return to in coming years as I teach and write about federal
constitutional law.
So, I hope the following comments will not
be a fly in the ointment but rather part of a celebration that asks what else
attending to the collective-action Constitution might tell us about
twenty-first-century governance. In particular, what about the administrative
state? The hundreds of federal agencies that employ millions of people barely
appear in the book. The president is indeed a character, and some recent
administrative law decisions make a cameo in a final section about the federal
courts as an alternative to a gridlocked Congress. (In this latter discussion, on
pp. 474-76, Siegel argues persuasively that the Court’s recent rash of clear
statement rules undermine congressional capacity to solve collective-action
problems.) But federal agencies, and the many state and private actors they
work with, are nowhere to be seen.
On the one hand, this is entirely
unsurprising: The book is about our collective-action Constitution, and the
U.S. Constitution contains only a few, open-ended provisions concerning the
administrative state. Although it has deep roots, the government we have today
is largely the product of twentieth-century developments permitted, but not
required, by the Constitution itself. And law schools tend to treat
constitutional law and administrative law as separate fields of study.
On the other hand, if we, with Siegel,
are trying to figure out how the federal government might address
collective-action problems that the states cause or at least cannot solve by themselves—if
we understand providing solutions for such problems to be the principal structural
purpose of the Constitution—then the beating heart of today’s collective-action
Constitution is the administrative state. The contemporary problems Siegel
tasks the federal government with solving—from responding to COVID-19 and
future pandemics, to fighting climate change and environmental pollution, to
addressing crumbling infrastructure and opioid addiction, and more—may well be
the subjects of legislation. But they are also, especially, subjects of
administrative action.
Consider today’s paradigmatic collective-action
problem: responding to climate change. Congress has laid some collective-action
groundwork. Building on existing state efforts, it adopted the Clean Air Act in
1963 and amended it most recently in 1990; the Inflation Reduction Act pours
hundreds of billions of dollars into tackling the problem. But regulation over
the last few decades has come from the Environmental Protection Agency, not the
legislature. The EPA has taken charge of resolving collective-action problems
among the states by adopting cooperation-generating rules such as the Clean
Power Plan (establishing carbon dioxide emissions limits for power plants) and
the Good Neighbor Plan (establishing nitrogen oxide emissions limits from power
plants and industrial facilities).
Agencies predominate in other collective-action
arenas as well. For instance, the constitutional questions of NFIB v.
Sebelius that Siegel explores quickly yielded to the statutory questions of
King v. Burwell and ongoing administrative decisions about health insurance
exchanges, tax credits, and Medicaid waivers. Even abortion has become largely
a question of administrative law. If there is unified-party government come
January, and if the filibuster is eliminated, Congress might enact a modified
Women’s Health Protection Act or a national abortion ban. But at least for now,
the most important decisions about abortion access across states with different
policies follow from the FDA’s regulation of mifepristone and misoprostol.
The Supreme Court’s most significant
recent blows to collective-action governance, moreover, have not been its Commerce
Clause decisions but its administrative law bender—prompted in part by states
that would prefer not to submit to federal regulation. In 2022, in West
Virginia v. EPA, the Court undermined the agency’s ability to regulate carbon
dioxide emissions by invoking the major questions doctrine. This past June, in Ohio
v. EPA, the Court stayed enforcement of the Good Neighbor Plan, finding
that the states were likely to succeed on their arbitrary-and-capricious claim.
Other cases from this past term overruled Chevron deference (Loper
Bright Enterprises v. Raimondo), curtailed agency enforcement powers (Jarkesy
v. SEC), and eased restrictions on belatedly challenging agency rules (Corner
Post v. Board of Governors of the Federal Reserve System). Even though these
decisions did not focus on structural provisions of the Constitution, might the
collective-action Constitution have something to say about the Court’s approach
to administrative law? As noted above, Siegel briefly objects to West
Virginia on statutory interpretation grounds, but is there more to be said
about agency power? I hope Siegel will extend his insights, because if recent
decisions mark our new administrative law, there is no meaningful scope for
twenty-first-century collective-action constitutionalism.
Another reason it is worth attending to
the administrative state is that it belies the theory of dual federalism that lingers
in constitutional litigation. Siegel presents issues throughout the book as
either the subject of state regulation (including multistate action) or the
subject of federal regulation. This is indeed how the Supreme Court’s
federalism cases proceed, so it is a sound way to explain the doctrine we have.
But it is not a sound way to explain the federalism we have.
When we look beyond Congress to the
administrative state, we see that most collective-action problems are not
addressed by either the states or the federal government, but rather by both acting
together in various permutations. The Clean Power Plan and Good Neighbor Plan involved
state as well as federal regulation. Federal rules concerning health insurance,
infrastructure development, national security, and other collective-action
problems similarly incorporate state law and policy. As Erin Ryan has shown, the boundary between state and federal power is often
subject to negotiation more than bright lines. As Bridget Fahey has documented, federal and state agencies
promulgate binding rules through coordinated cross-governmental processes.
And as I have argued, joint regulation can lead to state-differentiated federal policy
that creates space for the partisan and ideological disagreements that tend to stymie
uniform national solutions. Even as the Supreme Court’s recent administrative
law cases pose a serious threat to collective-action constitutionalism, administrative
agencies themselves may help us chart new paths to state-federal cooperation
and coordination, and thus to the “political and economic union” (p.6) that
collective-action constitutionalism champions.
Jessica Bulman-Pozen is the Betts
Professor of Law at Columbia Law School. You can reach her at
jbulma@law.columbia.edu.
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