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The constitutional duty to supervise.

b. The Denial of Supervisor Liability

The Court famously articulated the prohibition on respondeat superior liability in Monell v. Department of Social Services, basing it on the language and legislative history of Section 1983. (128) Scholars and jurists have criticized this rationale, but the Court has shown little inclination to revisit the issue. (129) Instead, it has often reaffirmed the prohibition on respondeat superior liability (130) and extended it to the context of Bivens suits against federal officers--even though the availability of Bivens suits is inferred directly from the Constitution and thus is not limited by any underlying statute. (131) Hence, although private employers are vicariously liable for actions taken by their employees in the usual course of employment, public employers are not.

At the same time as it denied respondeat superior liability, Monell ruled that a municipality could be liable under Section 1983 if "a municipal 'policy' or 'custom' ... caused the plaintiff's injury," as liability in such a case would be direct rather than vicarious. (132) In theory, Monell's policy exception represents another significant incorporation of administration into constitutional rights enforcement. In practice, however, Monell's policy exception has not lived up to its billing. Fear of violating the prohibition on respondeat superior liability has led the Court to restrict liability to actions by an official municipal policymaker with authority to establish the city's policy in a particular area; to demand a high level of culpability; and to require tight causation "between [a] policymaker's inadequate decision and the particular injury alleged." (133) These requirements not only substantially limit the exception's practical utility, but also preclude consideration of key administrative forces such as street-level decisions and practices. (134) In addition, these tight culpability and causation requirements serve to exclude liability for "'systemic' injuries," which "result not so much from the conduct of any single individual, but from the interactive behavior of several government officials, each of whom may be acting in good faith." (135)

Perhaps most importantly, the Court's denial of respondeat superior liability precludes consideration of all of the ways that government agencies control and shape actions by their employees separate from official policies or customs. The focus is put on individual employees, but individual employees' actions cannot be accurately assessed in isolation from the institutional contexts in which they occur. Instead, agency cultures, practices, and structures profoundly affect how personnel act and the weight given certain types of concerns. (136) In addition, "the threat that damages might be levied against the city may encourage those in a policymaking position to institute internal rules and programs designed to minimize the likelihood of unintentional infringements on constitutional rights." (137) Whether respondeat superior liability would lead to better deterrence of constitutional violations, overdeterrence, or even any measurable deterrence is a source of some debate. (138) But the key point for my purposes here is that the Court has largely excluded judicial consideration of such incentives on agency behavior by categorically prohibiting respondeat superior liability.* 139 To the extent the Court considers the incentive effects of liability, the Court maintains an individualistic focus in the context of developing immunity doctrines that limit government officers' personal liability. (140) And strikingly, in doing so, the Court does not consider administrative features such as near universal indemnification of governmental employees, which likely affects how individual officers respond to the possibility of being sued. (141)

The related denial of supervisory liability under Section 1983 and Bivens serves to further exclude consideration of administration in individual rights enforcement. Supervisory liability claims represent an effort to avoid Monell's ban on respondeat superior and vicarious liability by charging high-level government officials with direct liability for their deficient supervision of subordinates. (142) A recent assertion of supervisory liability appeared in Ashcroft v. Iqbal, in which the plaintiffs brought suit against the Attorney General and FBI Director for, among other things, knowing of and acquiescing in their subordinates' policy of subjecting post-9/11 detainees to harsh conditions of confinement solely on account of their race, religion, and national origins. (143) Appellate courts had allowed the possibility of such supervisory liability claims under somewhat varying standards, and the government defendants had conceded that "they would be liable if they had 'actual knowledge' of discrimination by their subordinates and exhibited 'deliberate indifference' to that discrimination." (144) Nonetheless, the Court rejected such deficient supervision as a basis for liability in terms that suggested elimination of supervisory liability altogether, stating that "[i]n a [section] 1983 suit or a Bivens action--where masters do not answer for the torts of their servants--the term 'supervisory liability' is a misnomer." (145) As a result, in order for the defendant officials to be liable, the plaintiff had to plead and prove that the officials had acted with discriminatory purpose. (146)

Iqbal's rejection of supervisory liability is not surprising. Leaving aside the Court's likely reluctance to second guess high-level officials' responses to the September 11th attacks, parsing the line between direct liability for inadequate supervision of subordinates who commit constitutional violations and vicarious liability for actions of subordinates is difficult indeed. Worse, unlike respondeat superior, which would impose liability on the governmental employer, liability for deficient supervision would attach to individual superior officers, whose ability to exercise close supervision may be seriously constrained by institutional forces over which they have little control. Inadequate supervision seems more likely to be an institutional failing than an individual one. But the fault for this misframing lies with the Court's insistence on approaching liability under Section 1983 and Bivens in individualized rather than institutional terms. Having done that, and having developed the deliberate indifference standard in other contexts, (147) the Court's preclusion of supervisory liability claims subject to this standard is difficult to defend.

D. Recurrent Themes

This overview, spanning a variety of constitutional doctrines, suffices to demonstrate four key themes. First is the Court's deep reluctance to incorporate general government administration into constitutional law, a reluctance that is manifested in an array of doctrinal requirements and appears to have increased with time. Second, when administration does enter constitutional analysis, courts emphasize specific, identified practices rather than overall institutional functioning and formal administrative features instead of actual practice. Third, supervision makes a decidedly one-sided appearance. Although the Court demands that provision be made for the President and high-level officials to oversee the actions of lower officials, little attention is paid to whether such oversight actually occurs, and the Court is extremely reluctant to fault high-level officers for failed supervision. The net effect is that systemic administrative functioning is denied constitutional relevance, and no constitutional claim can be made simply because a government agency or institution is inadequately managed or supervised.

The fourth theme is that underlying this exclusion of administration lie concerns about the proper judicial role. Courts sometimes voice these concerns in terms of an objection that general policy choices and priority-setting should be left to politically accountable branches and sometimes in terms of limited judicial competency, specifically the courts' lack of expertise in assessing administrative adequacy and inability to force meaningful change. Either way, the gist is clear: systemic administration is beyond the courts' legitimate purview. But even though constitutional doctrine's exclusion of systemic administration turns so heavily on distinctly judicial factors, the Court never suggests that general aspects of agency structure and functioning might carry greater constitutional weight outside the courts. Instead, at most, the Court states that the Constitution assigns responsibility for shaping administration and overseeing law execution to the President and Congress. (148)

E. Administrative Law and Systemic Administration

A final word should be said about administrative law, which might seem to be the natural home for fuller judicial consideration of systemic administration. Administrative law, after all, is centrally concerned with how agencies operate, and systemic administrative features play a central role in determining how well an agency performs. Indeed, systemic administration constitutes a central focus of executive-branch-generated administrative law, perhaps most clearly evident in presidential creation of a centralized process for regulatory review. (149)

Nonetheless, judicially enforced administrative law excludes many systemic aspects of agency functioning in ways very similar to constitutional law. (159) Much of this exclusion occurs through jurisdictional doctrines, with the Court reading the Administrative Procedure Act's (APA) provision for review of "final agency action" to require that suit be brought against discrete agency actions rather than against the agency's broader policies or programs that those actions reflect. (151) Although this line of cases ostensibly turns on the text of the APA, the Court's separation of powers concerns with judicial involvement in administration plainly fuel its statutory reading. In Justice Scalia's typically pointed phrasing, the limitation of final agency action to discrete acts ensures that individuals "cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made." (152)

The effect is not just to preclude "broad programmatic attacks," but more particularly to forestall challenges to systemic nonenforcement and agency inaction, despite the APA's express grant of review over agency failures to act. (153) The Court's 2004 decision in Norton v. Southern Utah Wilderness Alliance underscored this point, holding that the APA's provision for suit to "compel agency action unreasonably withheld or unreasonably delayed" (154) was available "only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." (155) Rarely do claims of systemic agency failure involve such discrete and required actions; instead, agencies often will have broad discretion in choosing how to implement their statutory responsibilities, and "[g]eneral deficiencies in compliance ... lack the specificity requisite for agency action." (156)

The exclusion of systemic administration from administrative law is not total, and sometimes courts will accord weight to more general aspects of agency functioning. One prominent instance is United States v. Mead, where the Court tied the deference accorded agency statutory interpretations to the procedures by which the agencies promulgated them and the extent to which they were subject to centralized agency review. (157) Even Mead's engagement with administrative structure, however, was limited. Rather than expressly tying deference to whether an interpretation is adopted by an agency's leadership, Mead put prime focus on congressional authorization and agency use of relatively formal procedures, and it gave no weight to the fact that the interpretation in question had been made by central headquarters. (158) But courts have also been reluctant to allow judicial review of true agency guidance (as opposed to an agency statement claiming to be guidance but actually operating as a de facto rule), notwithstanding the fact that guidance is a central mechanism by which higher agency officials control lower-level discretion. (159)

In short, the main forces driving agency action fall largely outside of judicial administrative law's ambit. Moreover, administrative law continues to have a court-centric focus, despite increased attention to administrative law as it surfaces within the executive branch. (160) As a result, as Daniel Farber and Anne Joseph O'Connell recently remarked, the "actual workings of the administrative state have increasingly diverged from the assumptions animating" administrative law. (161)

II. RETHINKING ADMINISTRATION'S CONSTITUTIONAL STATUS: THE CONSTITUTIONAL DUTY TO SUPERVISE

The mismatch between the current legal constructs and the reality of modern administrative government is reason enough to reconsider existing doctrine's exclusion of systemic administration. As important, however, is the significance that the Constitution itself assigns to systemic administration, in particular the administrative feature of supervision or internal oversight by federal officers. This Part offers an argument for inferring a constitutional duty to supervise. It first sets out two constitutional grounds--one rooted in Article II and the Take Care Clause, the other in delegation and accountability principles --for inferring such a duty and analyzes the scope of the duty to supervise that results from each ground. This Part then turns to the question of whether a duty to supervise is judicially enforceable.

The argument for a constitutional duty to supervise offered here draws on many conventional sources of constitutional interpretation, including constitutional text, historical practice, precedent, and normative and pragmatic analysis.162 But the preeminent basis is constitutional structure, with the duty to supervise inferred from the hierarchical ordering and accountability relationships evident in the Constitution. (163) Such structural reasoning frequently appears in separation of powers analysis and is particularly appropriate in this context, given limited textual guidance and the lack of prior judicial engagement with supervision's constitutional underpinnings. Moreover, structural reasoning is well-suited to instances such as the duty to supervise, where, as I argue below, primary enforcement may often lie with the political branches. (164)

A. Article II and the Duty To Supervise

Article II provides the most express textual constitutional recognition of a duty to supervise. Unfortunately, such a duty and its implications are lost in current debates, which focus instead on whether the President has the right to control administrative decisionmaking. This focus not only downplays presidential obligation in favor of presidential power, but also obscures the fact that Article II's emphasis on oversight and supervision is not limited to the President. Instead, the need for oversight and supervision represents a broader structural principle running throughout Article II's treatment of the executive branch.

l. The Take Care Clause and the Textual Basis for a Duty To Supervise

As Jerry Mashaw has put it, there is a hole in the Constitution where administration should be. (165) Almost none of the federal government's administrative structure--the different departments, their responsibilities, leadership, interrelationships --is constitutionally specified. Instead, the Constitution grants Congress broad power to construct the administrative apparatus "necessary and proper for carrying into Execution" the federal government's powers, including not just those granted to Congress but "all other Powers vested ... in the Government of the United States, or in any Department or Officer thereof." (166) 166 Congress acts, however, subject to some structural limitations, largely specified in Article II. (167) These include that "[t]he executive Power shall be vested in a President" and that the President "shall be Commander in Chief of the Army and Navy"; "may require" a written opinion from "the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices"; commissions all officers; appoints principal officers with senatorial advice and consent and inferior officers if Congress so provides; and "shall take Care that the Laws be faithfully executed." (168)

The Take Care Clause is particularly relevant to considering constitutional supervisory duties. Two points seem evident from its text. The first, indicated by the Clause's use of the passive voice and the sheer practical impossibility of any other result, is that the actual execution of the laws will be done by others.169 Despite vesting the executive power in the President, the Framers did not expect that the President would be personally implementing the laws, with advocates of strong executive power even acknowledging that "[w]ithout [key] ministers[,] the Executive can do nothing of consequence." (170) This point is reinforced by the Appointments Clause's provision for executive officers as well as the Opinion Clause's assurance that the President can obtain written opinions from principal officers. (171) As the Court has stated, quoting George Washington, "In light of '[t]he impossibility that one man should be able to perform all the great business of the State,' the Constitution provides for executive officers to 'assist the supreme Magistrate in discharging the duties of his trust.'" (172)

The second point is that the presidential oversight role is mandatory. (173) This obligatory character is often obscured by the more prominent and ongoing debate over the scope of presidential power. Advocates of a strong unitary executive use the Take Care Clause's requirement that the President ensure faithful execution of the laws to infer that he or she must have full power to control those implementing federal law. (174) Those defending a more constrained account of presidential power counter by arguing that the fact that the Clause is phrased as imposing a duty counsels against reading it to support assertions of broad presidential authority. (175) In short, both camps use the obligatory nature of the President's oversight duty primarily as grounds for drawing conclusions about the scope of presidential authority.

But the mandatory character of the Take Care Clause is worth underscoring in its own right. (176) This feature, combined with the Clause's oversight phrasing, means that the Take Care Clause represents the clearest constitutional statement of a duty to supervise. Indeed, the Clause stands as a rare acknowledgement of affirmative duties in the Constitution. According to David Dreisen, this duty aspect is reinforced by the presidential Oath Clause, which not only includes a promise "to faithfully execute the Office of President," but also a commitment to "preserve, protect, and defend the Constitution," thereby "implying] a... duty to try to prevent others from undermining it through maladministration of the law." (177)

Exactly what such a duty to supervise was understood to mean is less clear, and the drafting history of the Take Care Clause sheds little light on this question. Earlier versions spoke of the President's having power or authority to execute the laws, and the transformation into the ultimate duty phrasing occasioned little discussion. (178) This suggests that the Framers did not attach particular significance to the President's having an express duty to ensure law execution, but that could be because they had always envisioned the power to execute in similar obligatory terms. (179) Much also turns on what faithful execution of the laws means--itself a source of debate. (180) General agreement exists, however, that the Clause at least embodies the principle that the President must obey constitutional laws and lacks a general prerogative or suspension power. (181)

2. Hierarchical Oversight and Article II

These two features of the Take Care Clause--provision for presidential oversight and language signaling that such oversight is obligatory--combine to imply a hierarchical structure for federal administration, under which lower government officials act subject to higher-level superintendence. Article II's other provisions echo that hierarchy. A prime example is the Appointments Clause, with its differentiation between "Officers of the United States" and "inferior Officers," the latter subject to appointment by (and thus implicitly subservient to) Heads of Department. (182) This implication of hierarchical oversight is highlighted by current Appointments Clause case law, which defines inferior officers as "'officers whose work is directed and supervised at some level' by other officers appointed by the President with the Senate's consent." (183) Similarly, as David Barron and Martin Lederman have argued, "[T]he textual designation of the President as the Commander in Chief ... establishes a particular hierarchical relationship within the armed forces and the militia ... at least for purposes of traditional military matters." (184) The Opinion Clause also conveys the importance of oversight, as the President's power to require written opinions from principal officers both signals that the President was expected to play an oversight role and ensures that such officers cannot keep the President in the dark about how their departments are operating. (185) To be sure, the Opinion Clause is permissive rather than mandatory; it stipulates that the President "may require" opinions rather than that the President must. (186) But that phrasing does not undermine the hierarchical oversight dynamic signaled by the Clause so much as indicate that requesting opinions is just one method that the President can use to fulfill the Take Care supervisory duty. (187) Finally, although the Vesting Clause of Article II less clearly addresses the shape of internal executive structure, this clause's identification of "a President" in whom "[t]he executive Power shall be vested" makes clear that the Article II supervisory hierarchy takes a general pyramidal form, narrowing to an apex at the top. (188)

In short, despite leaving open most of the federal government's administrative organization, Article II's text signals that hierarchical supervision within the executive branch is an important structural principle. This hierarchical structure also has been central to the debate over the constitutional scope of presidential power. Unitary executive scholars claim that Article II's hierarchy requires broad presidential authority to control all executive-branch decision-making or at least at-will presidential removal power over those executing federal law. (189) But such a claim of broad presidential authority mistakenly elides the President's right and duty to supervise law execution with the scope of such supervision. (190) The structural principle of hierarchy entails that supervision up to the President must occur; it does not require that such supervision take the form of full presidential decisionmaking control. Only if supervision could not otherwise occur--a dubious proposition, given the variety of forms supervision takes today (191)--would such a broad claim of presidential power necessarily follow.

Similarly, although the Supreme Court has tied the Take Care duty closely to the President's power to remove principal officers, (192) it is not obvious that removal should play such a pivotal role. Removal is certainly one means of achieving higher-level oversight. But other structures for such supervision plainly exist, whether in the form of traditional mechanisms that enable review of decisions and policies, or more contemporary audit procedures to monitor performance and identify potential problems. (193) The Court recently dismissed these mechanisms as "bureaucratic minutiae" lacking constitutional significance, (194) yet in practice such bureaucratic minutiae are central to day-to-day implementation of the laws. Indeed, removal's constitutional centrality seems to be a further manifestation of constitutional law's rejection of systemic administration--bureaucracy--in favor of the individualistic model of a chief personally firing an assistant. (195)

Better clues for divining the Article II approach to supervision come from the Appointments Clause. It indicates that the supervision envisioned by Article II extends more broadly than just presidential oversight. The Clause's distinction between principal and inferior officers reveals that supervision was expected to occur at lower administrative levels as well. Indeed, the Constitution's express authorization of inferior officer appointment by courts or heads of departments, particularly combined with the Opinion Clause's limited application to principal officers of the departments, makes clear that the President's direct supervision was expected to be focused on the top of the administrative bureaucracy, at least outside of the military. (196) This further reinforces the concept that supervision should not be equated with removal. Removal is a mechanism best targeted to the top of an agency, given the difficulty of tracing particular institutional policies to specific lower officials, well-entrenched civil service protections, and the public outcry that removal often triggers. (197) At middle and lower levels, the other oversight methods detailed above, along with more indirect measures such as professional norms, agency culture, or reputational concerns, may be more effective mechanisms for controlling administrative behavior. (198)

3. Hierarchical Oversight and Executive Branch Supervision in Practice

Given the textual and structural emphasis on hierarchical oversight, some features of early administrative practice under the Constitution might seem surprising. In several contexts, presidential supervision and other forms of internal executive-branch oversight were quite circumscribed. One prominent example concerns district attorneys. "Before 1861, the district attorneys either reported to no one (1789 to 1820) or to the Secretary of the Treasury (1820 through 1861). Throughout this period, they operated without any clear organizational structure or hierarchy." (199) Although this lack of formal hierarchy did not preclude presidential supervision and direction, it certainly limited the occasions when such supervision would occur. (200) A second example involves reliance on state courts and state officials for some federal law enforcement, a reliance that the Framers clearly anticipated. (201) Harold Krent emphasizes that "Congress vested jurisdiction in state courts over actions seeking penalties and forfeitures, granted concurrent jurisdiction to state courts over some criminal actions, and assigned state officials auxiliary law enforcement tasks.... [These] state officials ... were far removed from control of the executive branch." (202) A third instance is the widespread delegation of responsibility to nongovernmental actors, such as the use of private merchants as assessors in customs disputes and reliance on the Bank of the United States to control the money supply. Here again, presidential control and executive branch oversight were lacking. (203)

But there were also numerous administrative arrangements characterized by a fairly high degree of internal oversight. Jerry Mashaw's recent excavation of early administrative practice emphasizes the central role of what he terms the "internal law of administration," under which "higher-level officials instruct subordinates and through which they can call them to account for their actions." (204) A key instance was the Treasury Department. Mashaw documents the way in which two early Secretaries of the Treasury, Alexander Hamilton and Albert Gallatin, exercised close oversight of customs officials through daily correspondence and frequent circulars. (205) A similar pattern of central oversight and instruction of field office personnel is evident in the Land Office context, albeit with a more uneven record. (206) In addition, early statutes setting up the administrative departments emphasized internal oversight and stipulated that lower-level officials would be subject to higher-level "superintendence." Thus, for example, the 1794 statute creating the Post Office provided that the Postmaster General "shall also have power to prescribe such regulations to the deputy postmasters, and others employed under him, as may be found necessary, and to superintend the business of the department, in all the duties, that are or may be assigned to it." (207) Notably, these statutes focused primarily on superintendence by principal officers, thereby reinforcing the point that hierarchical superintendence was not seen as coterminous with broad presidential control. (208) Moreover, ensuring adequate government administration at the federal level was plainly a central concern of many Framers, with the Federalist Papers proclaiming that "the true test of a good government is its aptitude and tendency to produce a good administration." (209)

The historical record thus demonstrates that hierarchical executive-branch oversight was understood to be an important accountability mechanism, particularly in the form of supervision of lower-level government officers by department heads and other top departmental officials. To be sure, such oversight was not uniformly required, nor was it the only means of ensuring effective government and checking overreach. (210) Still, according to Mashaw, "[T]he consistency, propriety, and energy of administrative implementation was made accountable primarily to high-ranking officials.... These were the sources of instruction, interpretation, audit, and oversight that counted in the day-to-day activities of administrative officials." (211) Although such internal oversight sometimes took the form of review of individual decisions, it often had a more systemic and prospective cast, with the aim being to supervise statutory implementation and administrative performance generally. (212) Frequently, moreover, such oversight was informal, taking the form of lower officials' consulting with their superiors and their superiors' seeking the President's ad vice--and the President in turn requesting to be kept informed and consulted on departmental matters. (213)

One final aspect of historical practice worth considering is the development of the civil service. Beginning with the enactment of the Pendleton Act in (1883) and culminating in additional measures through the (1930) s, federal workers gradually gained independence protections in hiring, tenure, and salary. (214) The result today is a system criticized as limiting managers' ability to fire employees or reduce salaries in response to poor performance. (215) Development of the civil service therefore might seem at odds with an emphasis on internal supervision. In fact, however, the opposite conclusion is more accurate. The civil service arose as a response to the partisan hiring that began with Andrew Jackson and took hold over the course of the nineteenth century. Under this "spoils system," control over government employment lay with the political party of the President. (216) The emergence of the civil service supported a broader transfer of authority to administrative officials, with bureau chiefs gaining the ability to select personnel and exercise control over agency activities--a development that Daniel Carpenter has termed the emergence of bureaucratic autonomy. (217) Indeed, the broadest reach of the federal civil service occurred at the heyday of modern federal administrative bureaucracies, with their characteristic of tight internal hierarchical control. (218) Hence, development of the civil service helps to illuminate the tension that exists between presidential and political supervision, on the one hand, and internal agency supervision, on the other--a tension that surfaces today primarily in battles over agency politicization. (219)

Yet the fact that internal oversight and hierarchical supervision were viewed as important and necessary for effective and accountable government does not demonstrate that these administrative practices were understood to have a constitutional basis. The variation in administrative structures and use of administrative arrangements with limited oversight suggests that early Congresses did not consider hierarchical supervision from the President down to be a constitutional imperative across the board. (220) Still, that variation leaves the possibility that internal executive-branch oversight was understood to have constitutional underpinnings, even if not required in all instances. Early Attorney General opinions offer some suggestions of such a view. Attorneys General disagreed over the extent of the President's power to direct executive officers on matters statutorily entrusted to their discretion. In particular, William Wirt, who insisted that the President was limited to "see[ing] that the officer assigned by law performs his duty ... not with perfect correctness of judgment, but honestly," also concluded that if an officer had made a "corrupt" decision, "the President is constitutionally bound to look to the case" and take care that the officer be punished or removed. (221) Wirt's distinction of honest and corrupt decisions suggests that he saw presidential oversight as needed in order to police intentional misuse of governmental power rather than as a broader requirement, but his invocation of a constitutional obligation of presidential oversight even in this context is noteworthy.

B. Delegation, Accountability, and the Duty To Supervise

Although the Take Care Clause and Article II's provision for hierarchical oversight within the executive branch represent the most overt constitutional reference to a duty to supervise, an additional basis exists on which to infer such a constitutional duty. This approach identifies the duty to supervise as a necessary structural corollary of the delegation of governmental power--both legislative delegations to the executive branch and further subdelegation of authority from the top of an agency to lower officials. The connection between delegation and supervision is supported both by constitutional references to hierarchical supervision in delegation contexts and by structural principles that demand the accountability of governmental power. Like its Article II counterpart, this version of the duty to supervise puts prime emphasis on hierarchical supervision within the executive branch, but it potentially has a wider and more flexible import.

1. Delegated Authority and the Hierarchical Oversight Model

The hierarchical oversight model identified in Article II, under which lower-level officials act subject to higher-level oversight, can also be found in Article III. Article III echoes Article II's distinction between principal and inferior officers by vesting the judicial power "in one supreme Court, and in such inferior Courts" as Congress may establish. (222) Article III also expressly provides for Supreme Court appellate jurisdiction--suggesting a reviewing and oversight role for the Court, albeit one subject to "such Exceptions, and under such Regulations as the Congress shall make." (223)

A number of scholars have argued that Article Ill's "coordinate requirements of supremacy and inferiority" give the federal judiciary a "pyramidal structure" and "hierarchical nature." (224) According to James Pfander, "Supremacy encompasses a power to oversee and control the judicial work of all inferior courts and tribunals in the judicial department," such that Congress "cannot place lower courts entirely beyond the [Supreme] Court's oversight and control." (225) Steven Calabresi and Gary Lawson push the point further, drawing on the uses of "supreme" and "inferior" in the Supremacy and Appointments Clauses to conclude that "inferior federal courts must be subject to the decisional supervision and control of the Supreme Court, which must be able to veto (reverse) any decision made by a subordinate court. Otherwise, they are not hierarchically inferior." (226) Although others are skeptical that Article III es tablishes such a strict requirement of subordinancy, (227) general agreement exists that the Court cannot be denied review authority in all cases from the lower federal courts presenting constitutional questions. (228) To paraphrase Henry Hart, there is thus a core of supervisory responsibility that cannot be denied without "destroy[ing] the essential role of the Supreme Court in the constitutional plan." (229)

Even more significantly, assertions of some supervisory role for the Supreme Court are now supported by longstanding and contemporary practice. Since 1875 Congress has granted the Court broad power to review lower federal court decisions and has granted review of state court decisions rejecting federal law claims going back to the 1789 Judiciary Act. (230) Congress has also long authorized the Court to adopt rules of procedure and practice that would bind lower federal courts, and the Court has asserted such a supervisory role for itself, including by insisting that lower federal courts follow its precedents. (231) Hence, in practice both Congress and the Court have viewed Supreme Court supervision as a key aspect of the federal court system.

Interestingly, a similar hierarchical oversight structure is not present with respect to Congress. Instead, Article I proclaims the internal autonomy of the two parts of Congress by mandating separate passage of legislation by both houses and expressly providing that "Each House" shall choose its own officers, judge the elections and qualifications of its own members, determine its own rules, police and expel its own members, and keep its own journal. (232) Although both the House and the Senate are granted distinct powers, only when it comes to authorizing adjournment are the two branches given express control over each other. (233) More common is a model of reciprocal checking, seen perhaps most clearly in the distinct role each house plays in impeachment. (234) Further, the Constitution nowhere specifies how each house is internally structured or how legislative officials are chosen below the highest level. The Court reinforced this structural independency in Nixon v. United States, where it held that determinations about which procedures conform to the Constitution's requirement that the Senate "try" impeachments were for the Senate alone to make. (235)

This contrast between the hierarchical structure created for the executive and judicial branches and Congress's internal equality is instructive. One explanation for the equal stature and independence of the House and the Senate is no doubt the disagreements between large and small states that led to Congress's bicameral structure, as well as ongoing struggles at the constitutional convention over the two houses' respective powers. (236) Overt hierarchy or supervisory control by one house over the other might well have precluded the compromises over Congress that allowed the convention to reach agreement. But another likely factor is the manner in which Congress was expected to operate. Both houses are required to meet at the same place and take decisions collectively, with no allowance made for final legislative action other than through the process of bicameralism and presentment. (237) By comparison, the Constitution expressly authorizes appointment of government officers and inferior federal tribunals, with a plain expectation that executive- and judicialbranch actors would not be limited to the President and the Supreme Court. Put differently, Congress was thought to be the unique legislative actor, whereas it was understood that there would be many executive officials and judges other than the President and the Justices of the Supreme Court. (238)

These differences in the branches' organization suggest a hierarchical oversight structure as the constitutional companion of delegated implementation. When a branch is expected to operate through a number of government actors or institutions, the Constitution invokes a dynamic of supervision. Again, this is not to say that all implementation of federal law must be subject to full presidential or Supreme Court control. But the repeated supervisory theme evident in the Constitution, and embodied in longstanding practice, suggests recognition of oversight and internal hierarchy as important ways to control delegated federal power.

2. Supervision and Accountability of Delegated Authority

Further support for a relationship between delegation and supervision comes from accountability principles implied by the Constitution's structure. Accountability, which is often identified as a core constitutional concern, (239) is a broad and malleable concept. It suggests answerability, and, in public law, the focus is often on the answerability of governmental officials. But that focus still leaves key questions open: in particular, which officials, answerable to whom, through which mechanisms, for what actions or decisions, and measured by what metric? (240) Not surprisingly, therefore, accountability surfaces in a variety of constitutional guises. (241)

Perhaps the most obvious guise is political or electoral accountability, with officials' need to answer to voters--or to answer to other officials who answer to voters. The principle of political accountability runs throughout the Constitution's structural provisions. It is evident in the stipulation of electoral selection for members of Congress and the President, political appointment of principal officers, and removal of officers via congressional impeachment. (242) Indeed, these provisions reveal that political accountability itself takes a variety of forms--forms that have changed over time, involve different voters, and entail more or less immediate control. (243) Political accountability concerns also underlie many constitutional doctrines, such as the nondelegation doctrine, the federalism anti-commandeering rule, and jurisprudence on the presidential removal power. (244)

Less textually prominent, but equally basic, is the principle of legal accountability. Legal accountability represents not just the constitutional commitment to "a government of laws, and not of men," (245) but also the core rule-of-law requirement that all exercises of governmental power be subject to constitutional limits that the political branches lack power to alter through ordinary legislation. (246) The principle of legal accountability, which was famously articulated in Marbury v. Madison's defense of judicial review and repeatedly underscored by subsequent judicial decisions, is often identified as entailing court enforcement. (247) But the principle of adherence to governing law has broader reach and applies even when governmental actions lie outside the ambit of judicial scrutiny. (248)

A third form of constitutionally salient accountability is accountability through supervision and oversight--sometimes referred to as bureaucratic or managerial accountability. (249) This form of constitutional accountability is far less commonly acknowledged, despite its embodiment in the textual references to supervision detailed above. (250) Indeed, as Ed Rubin has noted, bureaucratic accountability is often portrayed as being at odds with political accountability, a growing phenomenon that, he argues, reflects resistance to the legitimacy of administrative government. (251) A striking recent example is Free Enterprise Fund v. PCAOB, in which Chief Justice Roberts, writing for the majority, rejected the suggestion that either the presence of administrative oversight or the need for administrative expertise could justify the removal restrictions at issue:
   One can have a government that functions without being ruled by
   functionaries, and a government that benefits from expertise
   without being ruled by experts. Our Constitution was adopted to
   enable the people to govern themselves, through their elected
   leaders. The growth of the Executive Branch, which now wields vast
   power and touches almost every aspect of daily life, heightens the
   concern that it may slip from the Executive's control, and thus
   from that of the people. This concern is largely absent from the
   dissent's paean to the administrative state. (252)


Such a suggestion of opposition between political and bureaucratic accountability is deeply misguided. Most critically, this argument fails to account for the reality of delegation that lies at the heart of modern administrative government. Delegation does not only run from Congress to the executive, with vast responsibilities and discretion delegated to administrative agencies. It also occurs within the executive branch, with the President and principal officers regularly assigning significant responsibility to lower officials. (253) Such delegations to and within the executive branch necessitate a hierarchy of supervision in order for knowledge of official actions and policies to reach elected officials at the top of government. Furthermore, such internal administrative oversight is equally required to ensure that policies and priorities specified by elected leaders are actually carried out on the ground. (254) Free Enterprise Fund acknowledges this last point, tying political accountability to internal presidential oversight: "The people do not vote for the Officers of the United States. They instead look to the President to guide the 'assistants or deputies ... subject to his superintendence.' ... [W]here [in the administrative system at issue] is the role for oversight by an elected President?" (255)

Internal supervision and oversight are also central to political accountability for other reasons: they allow the public to be informed about administrative actions and provide a mechanism for public participation in administration. (256) Political accountability in this sense is less about electoral control, though awareness of agency actions allows stakeholders to exert pressure on elected officials to ensure that their interests are addressed. (257) Instead, the focus is often on direct involvement by affected groups and other interested parties in administrative decisionmaking. (258) Agency oversight structures help achieve transparency and opportunities for participation, (259) for example, by requiring advance notice, creating disclosure presumptions, reviewing decisions for responsiveness to identified concerns, and monitoring of agency actions for adherence to agreed-upon norms and goals.

Supervision and oversight are similarly pivotal when it comes to legal accountability. While courts play a central role in enforcing legal constraints on government, a variety of factors can limit the effectiveness and availability of such judicial review. (260) Internal supervision is free of many of these obstacles and thus plays a critical role in guaranteeing administrative adherence to governing legal requirements. (261) Reliance on internal supervision and oversight to achieve legal accountability, instead of solely on courts, also minimizes the risk that enforcing legal constraints will undermine managerial control and accountability. (262) Despite its resistance to according supervision much constitutional significance, the Court has noted the role that bureaucratic supervision plays in ensuring legal adherence. For example, it has emphasized the availability of internal administrative complaint mechanisms that can uncover and address constitutional violations in refusing to infer a Bivens right to challenge such violations in court. (263) A number of scholars have gone further, underscoring the importance of internal administrative constraints in ensuring that delegated power is not wielded in an arbitrary fashion. (264) And while the scope of delegated federal power is much vaster today, similar concerns with ensuring that government officials adhere to governing legal requirements have fueled bureaucratic supervision since the birth of the nation. (265) Indeed, the Take Care Clause formally links supervision and legal accountability by tying supervision to faithful execution of the laws. (266)

Put starkly, bureaucratic and managerial accountability in the form of internal executive-branch supervision is an essential precondition for political and legal accountability given the phenomenon of delegation. Scholars debate whether the broad delegations that characterize modern administrative government can ever accord with the Constitution's grant of legislative power to Congress and separation of powers principles. That debate will no doubt continue, but it has been eclipsed by reality; modern delegation is here to stay. (267) The more pressing question today is how best to integrate the inevitable phenomenon of delegation into the Constitution's structure. The answer, as I argue, lies in recognizing that delegation creates a constitutional imperative to ensure that the powers transferred are used in accordance with constitutional accountability principles. In short, delegation creates a duty to supervise delegated power.

This argument for a duty to supervise is more intuitively plausible with respect to legal accountability than with respect to political accountability. To begin with, the connection between supervision and adherence to law is familiar and already embodied in the Take Care Clause, as well as failure-to-train doctrine. Even if this link were not formally mandated, however, it is not difficult to see how internal supervision (through review mechanisms, training, and the like) can help ensure that specific agency decisions and actions adhere to legal requirements. To give just one example: The Department of Justice's (DOJ) requirement of approval by a high-level DOJ official before U.S. attorneys can use wiretaps, contained in DOJ's U.S. Attorneys' Manual, plays an important role in enforcing constitutional and statutory limits on federal law enforcement. (268) By contrast, the Constitution's express requirements of political accountability--election of members of Congress and the President, and the political branches' mandated role in appointment of principal officers--lack a similar formal tie to supervision. Moreover, the relationship between supervision and political accountability is more diffuse, and the Court has rejected the suggestion that political accountability requires political control of specific decisions. (209) Indeed, substantial disagreement exists about the degree to which political oversight of administrative decisionmaking is even constitutionally required. (270)

Yet these factors have more to do with limiting the extent of supervision that political accountability may require than with denying that the two are constitutionally connected at all. The basis of this constitutional connection is, to be sure, functionalist and pragmatic; the claim is that supervision is in practice necessary to achieve political accountability in a world of delegation. But functionalist analysis is a core feature of separation of powers jurisprudence. (271) If the principle of political accountability has any constitutional heft beyond its specific express constitutional manifestations--and the Court often has suggested it does (272)--then the functionalist and diffuse nature of a relationship between supervision and political accountability should not preclude its recognition.

As described, the link between delegation, accountability, and supervision is a structural one, but it can also be viewed as rooted in due process's prohibition on arbitrary exercises of governmental power. This prohibition is often invoked as a central concern in delegation, with due process considered to require that delegations be structured so as to prevent delegated power from being used arbitrarily. (273) Moreover, arbitrary action is understood to include not only unreasonable actions, but also actions that are at odds with constitutional accountability requirements. (274) Other administrative mechanisms help prevent arbitrary decisionmaking, and judicial review of administrative action plays a starring role in this context as well. (275) Due process, therefore, does not necessarily require internal executive-branch supervision to prevent arbitrary exercises of power. At a minimum, however, internal supervision is an important means of guarding against arbitrary use of governmental power, and one that becomes particularly important when judicial review is lacking.
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Title Annotation:I. The Mismatch of Constitutional Law and Government Reality C. Constitutional Law's Exclusion of Administration 2. Individual Rights b. The Denial of Supervisor Liability through II. Rethinking Administration's Constitutional Status B. Delegation, Accountability, and the Duty to Supervise 2. Supervision and Accountability of Delegated Authority, p. 1867-1897
Author:Metzger, Gillian E.
Publication:Yale Law Journal
Date:Apr 1, 2015
Words:7649
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