Tilting at Windmills

U.S. Administrative Law From a Hispanic Perspective

Eduardo García de Enterría (1923-2013)

The New Digest is pleased to present this guest post by Prof. José Ignacio Hernández, a Constitutional and Administrative Law Professor at Catholic University and Central University (Venezuela). He is also an invited Professor at PUCMM (Dominican Republic), Castilla La Mancha and La Coruña (Spain), and a Senior Associate at the Center for Strategical and International Studies.

From a comparative perspective—and using Hispanic law as a reference, namely Spain and Spanish America—the current crisis of the administrative state in the U.S. can be summarized as the absence of a comprehensive administrative law system. Instead, administrative law has developed within a limited scope, focusing on agencies and statutory delegation, resulting in a blurred image that fails to capture the constitutional dimension of public administration as a fiduciary institution that serves the people.

1. An introduction to Hispanic administrative law

Comparative administrative law typically draws on David's classic distinction between common and civil law systems. Generally speaking, “civil law" denotes the French model, which sees administrative law as a public law branch establishing an exorbitant framework founded on the prerogatives and privileges of public administration.

The exorbitant framework influenced other models in continental Europe, including Spain. In contrast to France, Italy, or Germany, Spanish administrative law was more receptive to the comparative perspective, resulting in a convergence of institutions. This rich mixture of institutions traveled to Spanish America, nurturing the Hispanic institutions that flourished in the "New World" since the end of the 15^th century.

Hispanic administrative law is a product of comparative law with two aspects: the fusion of various European institutions in Spanish law and the blending shaped by the ius commune, which played a relevant role in forming the early political institutions in Spanish America.

This comparative exercise leads to a Hispanic administrative law focused not on the exorbitant framework but rather on human dignity and the idea of public administration as a fiduciary entity serving the people within the boundaries of the legal order, encompassing both positive law and general principles of law.

There are two key reasons for conducting a comparative analysis of U.S. and Hispanic administrative law to reveal the underlying factors contributing to the crisis of the administrative state in the U.S. Firstly, the Hispanic legal tradition illuminates the absent element in American administrative law: a rational system that is not bound by the positive law. Secondly, the significant impact of the U.S. Constitution on Spanish-American constitutional law offers an alternative constitutional interpretation of the foundations of public administration.

2. Public administration’s oblivion in U.S. law

In 1893, Frank J. Goodnow observed that in the U.S., “the term administrative law is almost meaningless”. The following year, Freund lamented that the “branch of the public law which deals with the organization and action of the government in its administrative department has, until a very recent time, received so little attention from English and American jurists as not even to be distinguished by a commonly accepted name”. Writing in 1903, Wyman stated that “the system of administrative law and the very principles upon which it rests are in truth unknown.”

In the following decades, the situation changed dramatically due to the emergence of the independent regulatory commissions. In 1923, the Bar Association of St. Louis published a series of lectures about administrative law, the “branch of modern law relating to the executive department of government when acting in a quasi-legislative or quasi-judicial capacity.” Administrative law was no longer an unknown discipline. However, its study was centered on the agencies and their troublesome constitutional relationship with the Judiciary, the Legislative, and the Presidency, considering the many statutes enacted and the Supreme Court case law, including the seminal 1932 Crowell case.

As a result, the center of administrative law settled in the agencies. As Bernard Swartz explained, administrative law in the U.S. “is more narrowly conceived than it is in a Continental country like France." The result is the constitutional oblivion of public administration. Rather than studying the constitutional foundations of public administration and the core component of its constitutional authority, the discipline revolves around the agencies and their statutory powers.

3. The Hispanic tradition of administrative law

Following the German scholar Eberhard Schmidt-Assmann, Spanish Professor Javier Barnes has studied administrative law’s “dogmatic” as a rational system of general principles and legal concepts that facilitates its practical implementation. The dogmatic fulfills a similar function to grammar in English: it provides the guiding rules and legal concepts that structure administrative law.

In English, however, dogmatic refers to opinions based on established dogmas. In contrast, in the Hispanic tradition, the word has a similar meaning to jurisprudence, which is the study of law as a rational system. For example, in Spain, Germán Fernández Farreres studies administrative law grounded in general legal concepts focused on public administration. The creation of an autonomous administrative law by the French Conseil d’État profoundly influences this tradition. According to Weil and Pouyard, the Conseil creates an evolving administrative law firmly rooted in general principles. Drawing on this experience, García de Enterría explained, in 1963, the difference between the positive law and general principles, highlighting the distinction between lex and ius.

Lex (Ley in Spanish) refers to the formal legislation approved by the legislative power, like the “statute” in the U.S. Ius (Derecho, in Spanish) embedded the general principles of law and constitutional values, regardless of their formal recognition in the positive legislation. In Spanish America, the significant impact of the ius commune has strengthened the importance of the general principles derived from the legal order. This methodology, as Coviello explains, is inspired by the natural law. Consequently, Cassagne studies administrative law as a rational system of general principles that facilitates the subordination of public administration to the legal order (ius). The positive legislation (lex) cannot exhaust all administrative law.

The general principles fulfill a particular role in administrative law because, as García de Enterría explained, they adjust the rigors of legal positivism to the flexibility that the public administration needs to fulfill its constitutional mandates.

4. The absence of a rational system of administrative law in the U.S.

Such a rational system does not exist in the administrative law of the U.S., which is centered on positive law—the statute. Hence, rather than analyzing the constitutional foundations of the public administration and its subordination to general principles, the American tradition is more interested in the statutory powers of the agencies, considering the scope of the nondelegation doctrine.

In Hispanic tradition, this method is known as exegetic, contrasting with the dogmatic approach. The exegetic method emphasizes the interpretation of positive law based solely on its text, without considering its role within a broader legal framework. The distinction between American exegetic and Hispanic dogmatic can be understood through the constitutional foundations of administrative law.

Those foundations are significantly weaker in Art. II of the U.S. Constitution, which is limited to a general description of some of the Executive Branch's bodies. In contrast, and following the 1978 Spanish Constitution, Hispanic administrative law has strong constitutional foundations, to the extent that, following German scholars, administrative law is defined as the implemented constitutional law.

In the Hispanic tradition, constitutional interpretation is not limited to written rules because it also encompasses general principles and constitutional values. As Santiago explains, constitutional values—mainly the common good—serve as the teleological roof of constitutional interpretation.

However, in the U.S., as recently summarized by Sunstein, the constitutional interpretation is deeply influenced by originalism, which, under a Hispanic tradition, could be interpreted as a historical legal positivism. Under this extreme textualism, the public administration does not have specific foundations in Art. II. The alternative is the progressive or evolving interpretation of the Constitution, which is not based on general principles and values but on the judges' personal preferences.

Adrian Vermeule has introduced a middle-ground theory known as common good constitutionalism. This interpretation of the Constitution transcends positive legal rules by incorporating the common good as a value that curbs judicial activism. Many of the critics of this proposal do not consider the concept of the common good in the classical legal tradition, which reflects the core distinction between lex and ius. While textualism is confined to the ius -the written constitutional rules- the common good Constitution also embraces general principles and values (the ius), or the “small-c constitution”.

Common good constitutionalism resonates deeply in Hispanic America due to its strong foundations in the common good, reflected in Art. 32 of the Inter-American Human Rights Convention. Consequently, the administrative powers are justified in the common good (Cassagne), while the administrative law is defined through human dignity (Jaime Rodríguez-Arana).

Recently, the exegetic American tradition has begun to evolve, influenced by Adrian Vermeule’s perspective, which asserts that the modern state has “turned to general principles of lawmaking to uphold a supervisory role for legality." Additionally, the Fullerian approach put forward by Cass Sunstein and Vermeule suggests that case law has already integrated general principles (as the next section elaborates). For instance, consider Arizona Grocery and the principle that agencies must follow their own rules. As I noted elsewhere, this is a recognized general principle in Hispanic administrative law aimed at ensuring stability and certainty. Although Hispanic theory has embraced this viewpoint within its legal framework, American legal theory has yet to recognize the importance of the general principles. To make progress in that regard, it is essential to adopt new paradigms.

5. Four new paradigms to move the U.S. administrative law from lex to ius

From a Hispanic perspective, what is remarkable in the Loper Bright case is not the overruling of the Chevron doctrine, which could have a symbolic meaning. On the contrary, what surprises is the Supreme Court's effort to provide a constitutional interpretation of deference without relying on a rational system of values, principles, and rules. Trapped in legal positivism—the exegetic—the Supreme Court provides only a pragmatic explanation that fails to capture the constitutional dimension of the deference dilemma.

It is impossible to solve this dilemma with the exegetic tools, that is, a constitutional interpretation trapped in the historical legal positivism. The deference dilemma can only be solved by moving from the lex to the ius. Four new paradigms could help to achieve this change:

Administrative law should be defined as public administration law. Agencies are just one component of public administration. Therefore, administrative law should move from agencies to public administration. For that purpose, Art. II of the Constitution should be interpreted as the basic foundation of the public administration vested with the executive power. Hence, the Presidency is the highest authority of the public administration, including agencies. From a comparative perspective, the “unitary executive theory” is not an extravagant institution but a natural consequence of the definition of administrative law as the set of values, principles, and rules that apply to public administration, interpreted as a whole.

The nondelegation doctrine should be reinterpreted. In 1892, the Supreme Court relied on a “universal principle” to elaborate the nondelegation doctrine. The principle was universal indeed, as found in the Digesto: delegatus non potest delegare. However, Congress does not, and cannot, delegate the legislative function to the agencies or public administration. As Eduardo García de Enterría explained, the nondelegation doctrine presents an image of agencies as void organizations with no other function than those delegated by Congress. That image has been recently used by the Supreme Court to define the agencies as creatures of statute, resulting in a distorted vision that concentrates, in Congress, the executive and legislative functions. The Constitution - not statute - is the source of the executive function vested in the public administration.

The executive power goes beyond the “execution” of the positive law. In 1911, the Supreme Court determined that the rules approved by the executive did not constitute a delegation of legislative authority; instead, they were fundamentally administrative. Following this principle, rulemaking is not “quasi-legislative”, and adjudication is not “quasi-judicial.” There are, in essence, administrative or executive functions. In addition, the executive is not the enforcement of the statutes based on the delegations made, case by case, by Congress. The executive function vested in the public administration could be interpreted as the service of the people under the political control of the Presidency. Because the executive function is fiduciary, it is constrained by the statute and general principles. The principles of administrative law’s morality proposed by Sunstein and Vermeule fulfill the same role as the general principles of Administrative Law in the Hispanic tradition.

Deference is a consequence of the separation of powers. Deference and the now-defunct Chevron doctrine were not an attack against the separation of powers or an unlawful limitation of Art. III of the Constitution, as Loper Bright suggested. Deference is not a violation but a consequence of the separation of powers: only the public administration is vested with the executive function, which prevents the judiciary from invading the exercise of that function. As a result, and following Luis Arroyo Jiménez, the public administration judicial review should respect the margin of appreciation that results from discretionary powers. In Loper Bright, the Court concluded that when Congress “delegates” discretionary authority to the agencies, the judicial review must “stay out of discretionary policymaking left to the political branches”. Setting aside the fact that discretionary authority belongs to the executive function and is not a delegated power, this passage indicates that, from the perspective of separation of powers, courts are barred from intruding on the policymaking realm assigned by the Constitution to public administration. The separation of powers safeguards against judicial overreach into the executive power, emphasizing the constitutional requirement for a deference buffer.

6. Resuming the path of public administration´s constitutional foundations

At the beginning of U.S. administrative law, inspired by a comparative approach, early constitutional law scholars were interested in providing a constitutional definition of public administration based on the interpretation of Art. II. However, because of the emergence of agencies, and as Oren Tamir has stated, administrative law in the U.S. became parochial.

Administrative law, particularly after the New Deal, was centered on the exegetical interpretation of statutes as applied by agencies without developing a constitutional theory. The neglect of public administration created a constitutional void, leading to a limited perspective that agencies are merely products of statutes, lacking any intrinsic constitutional essence authority.

The weak constitutional foundations of the administrative law do not help. While Art. II only provides a basic organizational framework; the constitutional law in Hispanic America provides strong foundations, as can be reflected in 103 of the Spanish Constitution. According to this rule, the public administration has the constitutional authority to serve the people under the framework developed by the positive law (lex) and the values and general principles (ius). The public administration is the only branch that serves the people directly, which explains why administrative action should be permanently oriented towards the common good because there is no recess in serving the people.

From a comparative standpoint, the primary issue in the U.S. is the absence of a robust administrative law system: too much lex, but too little ius. Confined by a perspective that limits the executive's role to merely enforcing statutory law, U.S. administrative law struggles to tackle the intricate challenges of the 21st century. Additionally, the exegetic perspective acts like a warped mirror, distorting the understanding of the administrative state. As a result, the battle to dismantle the administrative state could be like the Quixote's battle against windmills.