Academic journal article Harvard Law Review

Comparative Domestic Constitutionalism: Rethinking Criminal Procedure Using the Administrative Constitution

Academic journal article Harvard Law Review

Comparative Domestic Constitutionalism: Rethinking Criminal Procedure Using the Administrative Constitution

Article excerpt


The Administrative Procedure Act (1) (APA) is as much a constitution as a statute. (2) As with all constitutions, the nature of the APA goes far in determining the topography of the procedural landscape that grows upon it. The Act regulates agency procedure by creating a transsubstantive procedural floor applicable to virtually all agencies that may be, and often is, supplemented by substance-specific procedures that Congress and agencies establish. (Courts, importantly, are forbidden by Supreme Court precedent from imposing procedural requirements that exceed those contained in the APA.) To the geographically inclined, the APA is the floor of a broad procedural valley; across the valley lie scattered hills of substance-specific procedure piled up by agencies and legislatures based on judgments about which procedures befit which agencies. The resulting landscape is an uneven terrain in which all agencies share a basic procedure, but procedural requirements as a whole differ from agency to agency and, consequently, subject matter to subject matter.

This administrative constitution accords agencies wide discretion to enact rules and adjudicate controversies, which courts review for "reasonableness." (3) When courts do overturn an agency's action--or, rarely, a congressional delegation--they tend to do so through the imposition of rules that generate incentives for structured processes, rather than through commands that impose specific procedures for agency actors to follow. United States v. Mead Corp., (4) for example, dangles Chevron deference (5) as a carrot to entice Congress and agencies to employ formal procedures but leaves it to those actors to determine precisely what kind.

Elsewhere, the Bill of Rights (plus a few lines of the Fourteenth Amendment) frames another proceduralist constitution: the constitution of criminal procedure. Like the administrative constitution, the criminal procedure constitution is transsubstantive, cutting across different types and severities of crimes. Here, again, legislative and executive actors are free to supplement the constitutional floor with substance-specific (or transsubstantive) procedures of their own design. But unlike the administrative constitution, the judicially interpreted floors of the criminal procedure constitution are detailed and demanding in a way that tends to stifle substance-specific supplementation. In many places, the criminal procedure constitution "occupies the field" (6)--picture a high procedural plateau, not a valley. The resulting landscape is more even, comprising a basically uniform code of judge-written procedural rules applicable to rape, fraud, and drug possession alike.

Here, too, agency actors (prosecutors) are accorded remarkably wide discretion to "adjudicate" cases--through plea bargaining. (7) This adjudication is the norm for criminal justice, leading to roughly ninety-five percent of all convictions. (8) Unlike agency action under the administrative constitution, however, plea bargaining need not survive "reasonableness" review. And in contrast to the administrative setting, when courts overturn executive action in the criminal context, they typically do so through top-down, process-imposing rules that require specific actors to do (or not to do) very specific things. (Think Miranda. (9))

The administrative and criminal procedure constitutions support two procedural topographies so dissimilar they might have evolved on different planets, yet they coexist on the very same map of American law. Drawing inspiration from comparative constitutionalism, this Note contrasts these two procedural constitutions along three major axes, confronting three far-reaching questions. First, when should procedure be transsubstantive and when substance-specific? Does it make sense that the FTC and the EPA follow different procedures whereas homicide and fraud are governed by the same rules? …

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