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All systems of administrative governance must decide whether to provide for substantive review over administrative decisions that comply with all the prescribed formalities and are otherwise lawful, and if so, how intensive the review should be. These are high-stakes questions. If courts review administrative choices too aggressively, they may end up effectively substituting their own judgment for the administrators’. Substitution of judgment defeats the purpose of delegating power to agencies, which have subject-specific expertise that courts lack. It also can raise separation of powers concerns, if courts are arrogating to themselves control over matters that has in fact been vested in agencies. On the other hand, if substantive review is too lax, or lacking altogether, regulated parties and the public may be left more vulnerable to administrative decisions that are arbitrary, inefficient, or wanting in other ways. The consequences, for individual freedom, efficiency, and governing legitimacy writ large, can be significant. Courts around the world have employed different doctrines to review the substance of agencies’ policy choices. This piece focuses on two canonical approaches: reasonableness and proportionality.

The number of administrative law texts is vast. The approach of this one, now in its second edition, is simple. It is: (1) to focus on the richest and most canonical cases; (2) to provide more extensive extracts of them than most casebooks; and (3) to keep the notes to a bare minimum. This manuscript reflects the current state of the law as of February 2021, but also includes some older classics that many contemporary casebooks cut. The text includes older cases because they are foundational; because they frequently lay out core concepts clearly; and because arguments about historical practices and precedents currently enjoy substantial weight in administrative law discourse. Students whose knowledge of caselaw only goes back a couple of decades will be ill-equipped to make or parry arguments rooted in older legal developments.

The Trump Presidency has been such a blur of shattered norms and unprecedented behaviors that observers might well wonder whether the concepts and frameworks usually used to understand the American presidency even apply. With respect to the President’s leadership of the executive branch, this paper argues that they can. For decades, U.S. Presidents have sought to exert greater control over the apparatus of the administrative state, principally through two broad strategies: centralizing control, and politicizing agency leadership. At the broadest level, many of the Trump administration’s moves have been in the service of one or the other of those strategies. To be sure, things have looked different in the Trump Era. In some respects, Trump has pushed the centralization and politicization of administrative power in ways without precedent in the modern presidency. At the same time, many of the President’s moves have been ineffectual. Although the Trump administration has been less effective at achieving the President’s objectives than it might have been, the President’s approach to administration has also caused damage to the institutions of American governance that will take time to repair.

This chapter charts how proportionality has developed into a global principle of constitutional law. The German Federal Constitutional Court constitutionalized the proportionality principle, which has roots in eighteenth-century political theory and nineteenth-century administrative law. From Germany, proportionality radiated outward, spreading through Europe with the aid of the courts from the European Union and the European Convention on Human Rights, and beyond Europe owing to its adoption by influential constitutional courts, including in Canada, Israel, and South Africa. PA has accompanied most successful transitions to rights-based constitutional democracy in the past three decades, including in Asia and Latin America. The empirical focus in this chapter is on (i) how courts have justified their turn to proportionality, (ii) how they subsequently deploy PA, and (iii) how these choices impact law and politics. Proportionality’s diffusion exhibits the basic features of what institutional sociologists call isomorphism, which is driven by mimetic, coercive, and normative mechanisms. Notwithstanding points of convergence, there are profound cross-national variation in how courts adopt and use proportionality. The chapter explains why this diversity is likely to persist.

The chapter explains why enforcement of the proportionality principle has become the central procedural component of constitutional governance in the world today. Part I argues that proportionality analysis [PA]—with its distinctive sequence of subtests culminating in balancing—neatly fits the structure of qualified rights, providing a comprehensive analytical framework for adjudicating them. A right’s provision is “qualified” when it contains a limitation clause, which authorizes government officials to restrict the enjoyment of a right for some sufficiently important public purpose. Today, virtually all of the most powerful courts in the world deploy PA to determine whether officials have properly exercised their authority under limitation clauses. PA proceeds through a sequence of subtests: (i) “legitimacy,” or “proper purpose”; (ii) “suitability” or “rational connection”; (iii) “necessity”; and (iv) “proportionality in the strict sense.” A government measure that fails any subtest in this sequence is unlawful. Part II directs attention to the various ways in which proportionality enables judges to manage legitimacy issues associated with the judicial supremacy that comes with trusteeship. PA enables judges: to avoid creating rigid hierarchies among rights and interests; to exploit the legitimizing logics of Pareto optimality (reducing harm to the loser as much as possible); and to identify and respect the lawmaking prerogatives of the officials whose policymaking they supervise. Part III develops a simple model of constitutional governance—with rights, a duty of officials to justify their rights-regarding actions, and PA at its core—and respond to objections and alternatives.

Apex courts face a fundamental problem: they cannot succeed in building systematic effectiveness in the face of regular opposition from the other branches of government, but they must sometimes invalidate the acts of those institutions to make rights effective. Chapter 5 considers how a court can build effectiveness while inducing inter-branch cooperation. A key is proportionality, which provides an infrastructure for the construction of dialogic jurisprudence. Constitutional courts delineate “zones of proportionality” within which policymakers enjoy meaningful policy discretion, albeit within guidelines set by the court. The chapter considers how rights-based, constitutional dialogues play out in three contexts, with respect: to legislating, making and enforcement of administrative law, and in the adjudication of private law disputes. These dialogues not only serve to secure other institutions’ acquiescence to the court’s jurisprudence, but drive proportionality reasoning into their decision-making routines, and hence into the legal domains over which they preside.

This chapter considers constitutional rights doctrines of the United States in light of the global spread of proportionality. It challenges the view that proportionality is alien to the American constitutional experience, showing that American courts have developed approaches to rights that closely resemble proportionality. In particular, the Supreme Court’s test for state laws that burdened interstate commerce, developed in the nineteenth century, resembled proportionality, and so did “strict scrutiny” review as it was initially applied by the Supreme Court in the mid-twentieth century. The Supreme Court’s current approach to constitutional rights, relying heavily on separate tiers of review, is characterized by three pathologies: (i) judicial abdication, in the form of rational basis review; (ii) analytical incompleteness, when an explicit balancing stage is omitted; and (iii) instability, leading to reclassification and doctrinal incoherence. The chapter argues that proportionality can protect rights more consistently and coherently than the current American approach, and concludes by showing how courts courts could give proportionality greater expression in constitutional doctrine.

This book focuses on the law and politics of rights protection in democracies, and in human rights regimes in Europe, the Americas, and Africa. After introducing the basic features of modern constitutions, with their emphasis on rights and judicial review, the authors present a theory of proportionality that explains why constitutional judges embraced it. Proportionality analysis is a highly intrusive mode of judicial supervision: it permits state officials to limit rights, but only when necessary to achieve a sufficiently important public interest. Since the 1950s, virtually every powerful domestic and international court has adopted proportionality as the central method for protecting rights. In doing so, judges positioned themselves to review all important legislative and administrative decisions, and to invalidate them as unconstitutional when they fail the proportionality test. The result has been a massive—and global—transformation of law and politics. The book explicates the concepts of “trusteeship,” the “system of constitutional justice,” the “effectiveness” of rights adjudication, and the “zone of proportionality.” A wide range of case studies analyze: how proportionality has spread, and variation in how it is deployed; the extent to which the U.S. Supreme Court has evolved and resisted similar doctrines; the role of proportionality in building ongoing “constitutional dialogues” with the other branches of government; and the importance of the principle to the courts of regional human rights regimes. While there is variance in the intensity of proportionality-based dialogues, such interactions are today at the heart of governance in the modern constitutional state and beyond.

This chapter focuses on the evolution of treaty-based human rights regimes in Europe, the Americas, and Africa. Each of the five courts under consideration insists on its own primacy with respect to the interpretation of charter rights; each considers such interpretations to be binding on all domestic judges; and each holds, or strongly implies, that states are under a duty to incorporate the regional charter as directly enforceable, domestic law with a rank at least above statute. Today, the European and the Inter-American courts take pains to portray their role and function in constitutional terms, a posture the three African regional courts appear to be following. All have adopted proportionality, which the European and Inter-American courts, in particular, have prioritized as an instrument of transnational governance. National trustee courts can and do resist transnational courts; but an increasing number have also held that international human rights—and respect for the jurisprudence of the regional court—are an integral part of their own domestic systems of justice. Today, domestic and treaty-based charters overlap, reflect, and reinforce one another. As important, trustee courts, at both levels, intensively interact with one another on the basis of shared commitment to building the effectiveness of rights protection through the enforcement of the proportionality principle. These facts support the view that, over the past three decades, a global, multi-level, and pluralistic constitutional system has emerged.

This chapter provides an overview of contemporary, rights-based constitutionalism, and develops an approach to comparative research on systems of constitutional justice. The vast majority of modern constitutions establish such systems, which comprise an entrenched charter of rights, and a constitutional or supreme court whose mission is to defend the supremacy of the constitution more generally. Rights provisions comprise criteria of legal validity: any act of public authority that does not conform to the charter is unconstitutional. The central role of the court is to ensure that public officials do not violate the charter of rights, most importantly, through the enforcement of the proportionality principle. The judges are, in effect, “trustees” of the values placed in trust by those who have enacted the constitution: the sovereign People. Part I defines basic concepts—including that of “the constitution,” “constitutionalism,” and “governance”—and examines the process through which the rights-based constitution became the global standard. Part II addresses two crucial questions: why would the founders of new constitutions choose (i) to enshrine constitutional rights as “higher law,” and (ii) to delegate broad enforcement powers to a trustee court, whose important rulings on rights are difficult or virtually impossible to overturn? It then defines the concept of systemic effectiveness, and considers the conditions that are necessary for a charter of rights to become effective as an instrument of governance. Part III explores three pathways to transformative constitutional change—adjudication, constitutional amendment, and legislation—and discusses the importance of trusteeship to each.

Verfassungsblog: On Matters Constitutional

This chapter picks up from the last, presenting the German Federal Constitutional Court’s expansive horizontal application of rights, as first announced in the landmark Lüth decision of 1958, as a continuation of its efforts to assert itself in a competitive institutional environment. In time, the Court’s horizontal rights jurisprudence went further, contributing to a constitutional cascade. Subsequent decisions drove constitutional norms deeper and deeper into ordinary law, bringing civil courts and legislatures under the tutelage of the Court and also engaging them as co-venturers in the project of elaborating constitutional meaning. The chapter explores the different ways the Court interacted with lawmakers and lower courts in the contexts of free speech, antidiscrimination law, and family law.

This chapter introduces readers to the horizontal effect of rights and why it matters. It explains how horizontal effect doctrines define some of the key commitments of the legal systems that produce them. The chapter also introduces the three legal systems that are the subject of the book, Germany, the United States, and Canada, and lays out the basic structure of the case studies. For each, the focus is on three things in particular: a court’s initial moves to apply rights horizontally, the doctrinal structures the court devises to manage the horizontal effect of rights, and the broader consequences these choices have on governance, in interaction with the moves made by other actors and institutions. Applying rights horizontally has the potential to empower courts, but a mix of variables shape the consequences of any such move. The chapter previews the patterns that the case studies reveal.

Constitutional rights protect individuals against government overreaching, but that is not all they do. In different ways and to different degrees, constitutional rights also regulate legal relations among private parties in most legal systems. In other words, rights can have not only a vertical effect, within the hierarchical relationship between citizen and state, but also a horizontal one, on the citizen-to-citizen relationships otherwise governed by private law. In every constitutional system with judicially enforceable constitutional rights, courts must make choices about whether, when, and how to give those rights horizontal effect. This book is about how different courts make those choices, and about the consequences that they have. The doctrines that courts build to manage the horizontal effect of rights speak to the most fundamental issues that constitutional systems address, about the nature of rights and of constitutionalism itself. These doctrines can also entrench or enhance judicial power, but in very different ways depending on the legal system. This book offers three case studies, of Germany, the United States, and Canada. For each, it offers a detailed account of the horizontal effect jurisprudence of its apex court—not in isolation, but as a central feature of a broader account of that country’s constitutional development. The case studies show how the choices courts make about horizontal rights reflect existing normative and political realities and, over time, help to shape new ones.

Officially, the U.S. Supreme Court hews to a strong state action requirement and rejects the idea that constitutional rights can shape what private parties owe each other. To highlight some of the peculiarities of the state action doctrine, this chapter begins with a detailed discussion of a modern case, Brooks v. Flagg Brothers. Then, to understand the doctrine’s origins, the chapter turns to history. This chapter illuminates the political logic of the state action requirement at the time when the Court first imposed it, in the late nineteenth century. The chapter also highlights more flexible approaches to conceptualizing rights in the American tradition that were closed off with the choice for a strong state action rule.

This chapter picks up the story where the previous chapter left off, showing how the Supreme Court of Canada initially made a show of rejecting the application of the Charter of Rights and Freedoms to private law relationships in Dolphin Delivery. But at the same time, the Court left itself room to interpret the common law to comport with Charter values. In the years since, litigants have pressed the Court to use this power to meet their normative demands, and the Court has done so on many occasions. At the same time, the Court has showed solicitude for legislative initiatives, often using the Charter to shape private-party obligations to one other only after the legislature has taken some rights-protective action in that area, in a strategy that might be called caboose constitutionalism.

This chapter explores the development of Canadian constitutionalism leading up to judicial engagement with the horizontal effect of rights. The Supreme Court of Canada already enjoyed an exceptionally broad jurisdiction when the enactment of the Charter of Rights and Freedoms in 1982 gave it an extensive set of constitutional rights to interpret. At the same time, the very breadth of the Court’s formal powers was a reason to use them carefully, especially because the Charter triggered anxieties about federalism among many advocates for provincial autonomy. This chapter shows how, in this context, the Supreme Court of Canada had little to gain from announcing a far-reaching constitutionalization of private law.

This chapter explores the U.S. Supreme Court’s use of, and departures from, the state action rule. It begins by reconstructing the state action rule’s origins in the Civil Rights Cases. From the late nineteenth century onward, the state action rule served as a constitutional containment device, bolstering the Court’s monopoly over constitutional interpretation and eliminating uncomfortable questions about what rights meant for the ordering of American society. A changing political context and the emergence of new normative demands in the twentieth century put this regime under pressure, which the Court managed through a series of strategic evasions of the state action rule, even while pledging fealty to it.

At the most basic level, the principle of proportionality captures the common-sensical proposition that, when the government acts, the means it chooses should be well-adapted to achieve the ends it is pursuing. The proportionality principle is an admonition, as German administrative law scholar Fritz Fleiner famously wrote many decades ago, that “the police should not shoot at sparrows with cannons”. The use of proportionality review in constitutional and international law has received ample attention from scholars in recent years, but less has been said about proportionality’s role within administrative law. This piece suggest that we can understand the differences in how proportionality is used in the administrative law of different jurisdictions in terms of three principal axes of variation. Systems differ with respect to how extensively proportionality is employed, how intensively review is conducted, and how discursively courts present their analysis. Notwithstanding the substantial cross-national variation in how proportionality is used, there are underlying regularities that lend support to the claim that proportionality amounts to a master concept of public law.

This essay, prepared for a conference on the Obama presidency and the Supreme Court held in Berlin in October 2016, surveys what presidential administration has looked like in the Obama era, and how the President’s leadership of the executive branch has been received in the Supreme Court. There is little that is really new in how President Obama has used the executive branch to pursue policy priorities; rather, his administration has deployed and developed techniques pioneered by previous presidents. Many of the techniques of presidential administration evade judicial review, although the Supreme Court has pushed back directly against President Obama’s leadership of the executive branch on occasion. Less dramatically, the Court has developed administrative law doctrines in ways that gently amplify judicial scrutiny of executive branch decision making, by trimming back on deference to agencies and insisting that they consider costs before regulating. Arguably, these developments contribute to a subtle reequilibration of the separation of powers, as the White House seeks to make policy administratively where it may, and the Court works to hold the line on executive branch aggrandizement where it can.

This paper offers a theory to explain cross-national variation in administrative law doctrines and practices. Administrative law regimes vary along three primary dimensions: the scope of delegation to agencies, agencies’ exercise of discretion, and judicial practices of deference to agencies. Working with a principal-agent framework, we show how cross-national differences in institutions’ capacities and the environments they face encourage the adoption of divergent strategies that lead to a variety of distinct, stable, equilibrium outcomes. We apply our model to explain patterns of administrative law in the United States, Germany, France, and Commonwealth jurisdictions.

A persistent challenge for the American administrative state is reconciling the vast powers of unelected agencies with our commitment to government by the people. Many features of contemporary administrative law — from the right to participate in agency processes, to the reason-giving requirements on agencies, to the presidential review of rulemaking — have been justified, at least in part, as means to square the realities of agency power with our democratic commitments. At the root of any such effort there lies a theory of democracy, whether fully articulated or only implicit: some conception of what democracy is about, and what democracy requires. While several conceptions of democracy have influenced administrative law over the years, administrative law has never come to terms with a strand of democratic thought that I term democratic minimalism. Democratic minimalists argue that conventional theories of democracy set unrealistic benchmarks to evaluate government practices, because they expect more than is reasonable of citizens, leaders, and institutions. Accordingly, minimalists seek to offer a less ambitious, more attainable account of democratic governance that nonetheless captures core normative commitments. This Article presents the first account of minimally democratic administrative law. The Article identifies the conceptions of democracy that have dominated thinking about administrative law to this point and highlights challenges to them before outlining a competing, minimalist conception of democracy. It then revisits contemporary debates over how courts should review agency action from a minimalist standpoint.

It is common to think that replacing a judge with a new appointment nearer an ideological extreme will pull outcomes on the court in the ideological direction of the new appointment. This paper argues that this intuition is not always correct, at least for a class of close cases. The model developed here predicts that, in certain close cases, appointing a conservative (liberal) to replace a moderate may result in a loss for the court’s conservative (liberal) wing. What drives this outcome is expressive costs: judges incur a cost for signing opinions distant from their own ideal points, so that a judge nearer the swing vote can better afford the compromises required to win. The model holds implications for judicial appointment strategies and helps explain findings that have puzzled other scholars.

This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of how constitutional judges in other systems use PA, assesses the costs and benefits of adopting it, and contrasts proportionality with American strict scrutiny. Part III recovers the foundations of proportionality in American rights review, focusing on two critical junctures: (1) the emergence of a version of PA in Dormant Commerce Clause doctrine in the late nineteenth century, the core of which persists today; and (2) the consolidation of the strict scrutiny framework in the mid-twentieth century. Part IV demonstrates that the “tiered review” regime chronically produces pathologies that have weakened rights protection in the United States, and undermined the coherence of the Supreme Court’s rights jurisprudence. PA, while not a cure-all for the challenges facing rights-protecting courts, avoids these pathologies by providing a relatively systematic, transparent, and trans-substantive doctrinal structure for balancing. We also show that all three levels of review - rational basis, intermediate review, and strict scrutiny - have, at various points in their evolution, contained core elements of proportionality. In Part V, we argue Supreme Court can and should develop a home-grown version of PA, based on its existing case law and American constitutional traditions and values, and we respond to objections to the argument.