Regulating Constitutional Law

Sophia Z. Lee, Race, Sex, and Rulemaking:Administrative Constitutionalism and the Workplace, 1960 to the Present, 96 Va. L. Rev. 799 (2010). Anne O'Connell There is considerable overlap between administrative law and constitutional law. The appointment of particular agency leaders without Senate confirmation, ex parte communication between an agency and interested persons in a rulemaking process, and the type and timing of a hearing used in terminating a government benefit, for example, can raise constitutional issues. These topics generally receive some attention, at least in the academic literature and at times in the courts. Sophia Lee's exceptional article, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, turns our attention from these more conventional explorations of the overlap to "regulatory agencies' interpretation and implementation of constitutional law," what Lee terms "administrative constitutionalism." The article compares the contrasting responses of the Federal Communications Commission and the Federal Power Commission to pressure to use the state action doctrine to enact and enforce employment policies aimed at furthering equal employment by race, sex, and ethnicity, mainly in the 1960s and 1970s. The FCC did implement equal employment rules, largely independent of direct presidential or congressional influence, while the FPC did not. Continue reading "Regulating Constitutional Law"

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