Law, College of


Date of this Version



Boston University Law Review 91:6 (December 2011), pp. 2029-2102


Administrative agencies play a crucial role in American government, so unsurprisingly, their actions sometimes threaten individual rights. Despite this threat, courts determining whether a constitutional individual right has been violated often ignore the fact and nature of administrative action. Indeed, in a wide range of cases alleging the violation of an individual right, the Supreme Court reflexively defers to the government without asking whether administrative officials or more directly accountable political representatives were responsible for the alleged infringement. Even when the Court identifies these distinctions, its treatment is inconsistent and inchoate.

This Article argues that courts should more consistently and carefully consider the nature of administrative discretion when determining whether an agency has violated a substantive individual right. Instead of casually conflating administrative and legislative action, courts deciding such cases should identify the relevant constitutional actor. When that actor is an agency, courts should then draw on administrative law norms to examine whether the agency deserves deference. Such an approach would help courts avoid the unjustified deference they sometimes offer agencies in individual rights cases, thus encouraging constitutional adherence and assuring independent judicial evaluation of the alleged constitutional injury.