Ilan Wurman: Constitutional Administration
In the current issue of the Stanford Law Review, Ilan Wurman (Winston & Strawn LLP) has the article Constitutional Administration (69 Stan. L. Rev. 359 (2017)). Here is the abstract:
Administrative law rests on two fictions. The first, the nondelegation doctrine, imagines that Congress does not delegate legislative power to agencies. The second, which flows from the first, is that the administrative state thus exercises only executive power, even if that power sometimes looks legislative or judicial. These fictions are required by a formalist reading of the Constitution, whose Vesting Clauses permit only Congress to make law and the President only to execute the law. This formalist reading requires us to accept as a matter of practice unconstitutional delegation and the resulting violation of the separation of powers, while pretending as a matter of doctrine that no violation occurs.
This Article argues that we ought to accept the delegation of legislative power as a matter of doctrine because doing so can help remedy the undermining of the separation of powers. Accepting delegation as a matter of doctrine allows us to delineate the legislative, executive, and judicial components of administration and to empower each constitutional branch of government over the component corresponding to its own constitutional function. With this insight, for example, a legislative veto of the administration’s legislative acts is constitutional.
This Article seeks to make one functionalist move (accepting delegation) in order to deploy formalist tools to restore some semblance of the original constitutional scheme of separate powers. It seeks to take both formalism, which has served merely to mask the administrative state’s unconstitutional foundations, and functionalism, which has failed to offer any limiting principles to modern administrative practices, more seriously than modern scholars and doctrine do. A functionalist approach to delegation allows us to deploy formalism—but an honest formalism—to the separation of powers.
(Also, I hear he has a forthcoming book on originalism...).