When the administrative state encounters the constitution

Interest in the administrative state and its relationship with the constitution has been revitalized in recent years in a polarizing fashion. In the United States, the first Trump administration’s efforts to undermine the administrative state have emboldened wholesale attacks against administrative agencies, which are bound to intensify during the second Trump administration. In Canada, the leader of the Official Opposition has echoed similar, albeit less strong, sentiments. In the United Kingdom, legislative debates reveal references to “distant bureaucrats” and warnings about the “growing and alarming phenomenon [of] the administrative state.” At the same time, across the same three countries, the administrative state has been welcomed as an arena in which new actors, beyond the courts and the legislatures, have interpreted and implemented constitutional law creatively across various policy domains. These divergent approaches bring to the fore the fundamental question of how the administrative state encounters the constitution—what has been labeled in the literature as “administrative constitutionalism.” This chapter draws on three country cases, Canada, the UK, and the United States, to offer a tripartite categorization of these “constitutional encounters”: 1) invisible constitutional encounters; 2) jurispathic constitutional encounters; and 3) jurisgenerative constitutional encounters. It suggests that these paradigmatic ways of thinking about the interaction between the administrative state and the constitution were prominent at different stages of the development of the administrative state in the three countries. This typology also captures how institutional actors still approach administrative constitutionalism and offers a normative framework for thinking through the institutional relationships across these actors. In other words, the chapter puts forward this typology not only as historically informed and analytically helpful but also as a normatively useful framework to assess the role of administrative actors in elaborating and implementing constitutional commitments in pluralist legal orders.