Public Law as a Whole and Normative Duality: Reclaiming Adminstrative Insights in Enforcement Review
Tamir, Michal, Texas Journal on Civil Liberties & Civil Rights
A recent ad campaign urged Americans to buckle their seatbelts by warning them to "Click It or Ticket."1 But, theoretically, the penalty could be a lot more severe-consider a campaign entitled "Buckled or Booked." In the 2001 case Atwater v. City of Lago Vista, the petitioner, Atwater, was arrested and held in jail for a seatbelt violation.2 The Supreme Court affirmed the constitutionality of the arrest, holding that the Fourth Amendment does not limit police officers' authority to arrest without warrant for minor criminal offenses.3 So long as a police officer has probable cause to believe that an individual has committed even a very minor criminal offense in the officer's presence, she is authorized to make a custodial arrest without balancing the costs and benefits involved or determining whether the arrest is in some sense "necessary."4
Despite its holding, the Court seemed to acknowledge the absurdity of Atwater's arrest, with both the majority and dissenting opinions characterizing it as a "pointless indignity."5 In fact, the absurd result of an arrest for a minor seatbelt violation, while extreme, indicates a broader problem in American jurisprudence-the exclusivity of constitutional law in enforcement review. Consider, for example, a world in which enforcement authorities were bound by administrative principles, such as the duty to act proportionally by giving due regard to the balance between the ends pursued and the means used to achieve those ends. A police officer aware of the balance between deterring seatbelt violations to prevent automobile injuries and the appropriate means to achieve that goal is unlikely to infringe upon the freedom of violators by arresting them.
This Article contends that the American emphasis on constitutional demands at the relative expense of the principles and insights of administrative law can lead to paradoxical results. As an alternative to the current, dichotomous view, this Article proposes a more holistic approach towards public law.
Constitutional law and administrative law are both components of public law-the law of relationships between a government and those whom it governs. However, the American legal system often separates issues into those subject to constitutional review and those left to administrative review. Administrative law in the United States applies primarily to actions attributable to governmental entities serving regulatory functions. In reality, administrative law plays second fiddle; there is a tendency to evaluate every issue involving human liberties under solely constitutional principles (over-constitutionalism). As a result, potentially helpful insights from administrative law are often overlooked in "rule of law" cases.
In particular, administrative law in the United States excludes the actions of criminal enforcement authorities from its purview. Police and prosecutors are rarely seen as part of "administrative law" despite the fact that they are precisely the governmental actors who most directly intervene in people's lives. The use of constitutional review without any administrative perspective, combined with the traditional American reluctance to interfere with enforcement discretion, grants these authorities excessive power in administering criminal proceedings and may lead to insufficient controls over abuses of power.
In many other countries the situation is different. In some countries, such as England and Israel, the common law gradually established administrative grounds for judicial review and constitutional principles for the protection of human rights, even without the use of a unitary constitution. The principle of the rule of law, along with the doctrine of ultra vires-requiring government and its agents to act within their legitimate authority-formed the basis for judicial review of administrative power. Administrative law in these countries helps define and constrain the scope of government's executive, regulatory, and quasi-judicial activities. …