Anjali S. Dalal, Administrative Constitutionalism and the Development of the Surveillance State
Comment by: Michael Traynor
Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2236502
Workshop draft abstract:
Administrative constitutionalism is a theory that promotes and protects laws that reflect the deliberative process. It is a flavor of popular constitutionalism that values the multi-year conversations among the various branches of government, levels of government, and the public, reflecting the evolution and slow entrenchment of a set of norms. For administrative constitutionalists, it is the dialogic process that lends legitimacy to the norm that ultimately evolves and become entrenched.
However, one of the dangers of administrative constitutionalism in practice is that of entrenchment before deliberation. Agencies, in their role as norm entrepreneurs, can develop and, over time, entrench norms before those norms have the opportunity to emerge from the deliberative process. This situation threatens to create legitimacy based on historical practice and path dependency, not deliberation and consensus building.
This article provides an account of administrative constitutionalism at its best and its worst, by tracing the history of the creation and evolution of the Attorney General Guidelines, the governing document for the FBI. In particular, this article looks at the defining features that led to the early success and later failure of administrative constitutionalism in practice and attempts to articulate the administrative architecture needed to ensure that the reality of administrative constitutionalism reflects the deliberative and democratic promise of the theory.
The article begins with a brief summary of Eskridge and Ferejohn’s theory of administrative constitutionalism. Part I provides an account of domestic surveillance law that demonstrates the power and promise of administrative constitutionalism. In this Part, I trace the growth of the FBI’s domestic surveillance practices from its early years until the development of the FBI’s first governing document, the
Attorney General Guidelines. This document reflected the tenor of the time and a high point in the FBI’s protection of First Amendment rights in the face of competing national security concerns. Part II provides an account of the subsequent iterations of the Attorney
General Guidelines that illustrates the dangers of agency norm entrepreneurship and entrenchment gone unchecked. In this Part, I detail the historical evolution of the Guidelines and attendant shift in the balance between free speech and national security, in favor of national security. This shift occurs with neither the input of the other branches of government nor the public, but is encouraged by the norm entrenchment that follows, reflecting a failure of administrative constitutionalism in practice. This failure is marked by the return of the three dominant features of the Hoover FBI — the unchecked expansion of the FBI’s mission, the pursuit of mission through illegal or potentially illegal means, and the creation of an intelligence gathering process cloaked in secrecy. Part III suggests a few structural changes to help architect against future failures of administrative constitutionalism. In particular, Part III explores the appropriate role of Congressional oversight, judicial intervention, and agency accountability to ensure the success of administrative constitutionalism.