Lee on Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace since 1960

Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present is a new article by Sophia Z. Lee, University of Pennsylvania Law School. It appears in the Virginia Law Review (2010). Here's the abstract:

This Article uses the history of equal employment rulemaking at the Federal Communications Commission (FCC) and the Federal Power Commission (FPC) to document and analyze, for the first time, how administrative agencies interpret the Constitution. Although it is widely recognized that administrators must implement policy with an eye on the Constitution, neither constitutional nor administrative law scholarship has examined how administrators approach constitutional interpretation. Indeed, there is limited understanding of agencies' core task of interpreting statutes, let alone of their constitutional practice.

During the 1960s and 1970s, officials at the FCC relied on a strikingly broad and affirmative interpretation of the Constitution's equal protection guarantees to adopt and enforce rules requiring equal employment in the FCC's regulated industries. Meanwhile, administrators at the FPC relied on a quite different understanding of equal protection to reject similar rules.

Federal officials' differing views of whether the Constitution authorized, perhaps even required, them to regulate workplace discrimination illuminates an unexamined aspect of constitutional governance that I call administrative constitutionalism: administrators' interpretation and implementation of the Constitution. For the most part, administrative constitutionalism involves administrators' creative extension or narrowing of court doctrine in the absence of clear judicially defined rules. However, it also includes administrators selectively ignoring clearly relevant precedent or resisting judicial interpretations by acquiescing to a reviewing court's judgment but not to the constitutional principle on which that judgment is based.

The history of equal employment rulemaking at the FCC and the FPC supports three conclusions. First, equal protection followed a notably different path in administrative agencies than it did in the courts. Second, this example of administrative constitutionalism suggests some general features of administrators' constitutional practice, particularly that administrators are guided, but not always bound, by court doctrine. Third, administrative constitutionalism is likely a recurring and persistent feature of the modern American state. To the extent that administrative constitutionalism differs from court constitutionalism, a complete account of the substance and scope of constitutional governance must consider the constitutional practice of administrative agencies.