Gillian Metzger’s The Constitutional Duty to Supervise Chosen by ABA AdLaw Section as Best Article Published in 2015

by Chris Walker — Friday, Oct. 21, 2016@chris_j_walker

Gillian MetzgerNext Friday, October 28th, the American Bar Association Section of Administrative Law and Regulatory Practice will hold its annual Administrative Law Section Awards Dinner in Washington, D.C. Each year the ABA AdLaw Section hands out a number of awards, including an award for the best piece of administrative law scholarship published in the last year.

This year’s selection is Gillian Metzger‘s The Constitutional Duty to Supervise, which was published in the Yale Law Journal last year. Professor Metzger’s article is obviously a timely and important contribution to the discussion of presidential control and oversight of the modern administrative state. Here’s the summary of the article from the SSRN abstract:

The IRS targets Tea Party organizations’ applications for nonprofit tax-exempt status for special scrutiny. Newly opened online federal health exchanges fail to function. Officials at some Veterans Administration hospitals engage in widespread falsification of wait times. A key theme linking these examples is that they all involve managerial and supervisory failure. This should come as no surprise. Supervision and other systemic features of government administration have long been fundamental in shaping how an agency operates, and their importance is only more acute today. New approaches to program implementation and regulation mean that a broader array of actors is wielding broader discretionary governmental authority. The centrality of systemic administration in practice contrasts starkly with its virtual exclusion from contemporary U.S. constitutional law. This exclusion of administration takes a variety of doctrinal guises, but it surfaces repeatedly in both structural and individual rights contexts.

This Article argues that the exclusion of systemic administration from constitutional law is a mistake. This exclusion creates a deeply troubling disconnect between the realities of government and the constitutional requirements imposed on exercises of governmental power. Just as importantly, the current doctrinal exclusion of administration stands at odds with the Constitution’s text and structure, which repeatedly emphasize one particular systemic administrative feature: supervision. This emphasis on supervision is most prominently manifest in Article II’s Take Care Clause, but it also surfaces more broadly as a constitutional prerequisite of delegation of governmental power. Whether it is rooted in Article II, general separation of powers principles, or due process, a duty to supervise represents a basic precept of our federal constitutional structure.

Moreover, concerns about judicial role do not justify the Court’s refusal to engage with systemic administration, and judicial recognition of a constitutional duty to supervise is critical even if the duty is entirely politically enforced. Indeed, recognizing a constitutional duty to supervise is as central to the overall project of constitutional interpretation as it is to the aim of better keying constitutional law to the realities of contemporary governance. Recognizing this duty underscores the need for greater attention to how courts can support constitutional enforcement by the other branches and highlights the porous and critical relationship between constitutional and subconstitutional law.

And here is the full list of award recipients:

Mary Lawton Award for Outstanding Government Service:
Judith S. Kaleta, Deputy General Counsel, U.S. Department of Transportation
David Sullivan, Special Counsel to President of the Massachusetts Senate

Section Fellows Award:
Judge Joseph B. Bluemel, District Court Judge for the Third Judicial District for Lincoln and Uinta Counties, Wyoming

Volunteer of the Year Award
Cynthia Drew, Editor, Administrative & Regulatory Law News

Award for Scholarship in Administrative Law (to be presented in December):
Gillian E. Metzger, Stanley H. Fuld Professor of Law, Columbia Law School

Gellhorn-Sargentich Law Student Essay Award (to be presented in December):
Gugandeep Kaur, Boston University School of Law

If you’re in DC next Friday and want to join us for the awards dinner, you can register here.

Moreover, the next day is the Section’s quarterly council meeting, and Section members are welcome to join us. Here are the details for that: Section Members who may be in the Washington DC area are invited to attend the next Council Meeting, which will take place on Saturday October 29, at American University Washington College of Law. The Council meeting will be held in the Faculty Lounge Y112, on the first floor of the Yuma Building. There is no charge to attend the meeting, but space is limited. Please RSVP to Anne Kiefer (anne.kiefer@americanbar.org, 202.662.1690). Breakfast and Lunch will be provided for all attendees.

Congrats to Professor Metzger and the other recipients of the annual AdLaw Section awards!

 

About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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