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Ordinary Administrative Law as Constitutional Common Law

2009; RELX Group (Netherlands); Linguagem: Inglês

10.2139/ssrn.1486272

1556-5068

Gillian E. Metzger,

Legal Systems and Judicial Processes

Last term, in Federal Communications Commission (FCC) v. Fox Television Stations, the Supreme Court expressly refused to link ordinary administrative law to constitutional concerns, insisting that whether an agency action is “arbitrary and capricious” and whether it is unconstitutional are separate questions. In this article, I argue that Fox is wrong. The Court’s protestations aside, constitutional law and ordinary administrative law are inextricably linked, with the result that a fair amount of ordinary administrative law qualifies as what Henry Monaghan famously termed constitutional common law. Its doctrines and requirements are constitutionally informed but rarely constitutionally mandated, with Congress and agencies enjoying broad power to alter specific administrative mechanisms notwithstanding their constitutional aspect.