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.