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There is a growing trend in federal agencies towards explicit consideration of the Constitution, and the principles of justice that it suggests. In controversies ranging from the Justice Department's challenge to the Oregon Death With Dignity Act to IRS regulation of the political activities of non-profits, agencies have come more and more to rely on their own view of what the Constitution requires or implies.

Academic commentary almost universally lauds this move toward interpretive autonomy, if not the specific interpretations that the current administration has offered. Advocates of republicanism and cooperative regulation welcome the opportunities for wider public deliberation on constitutional issues that agency interpretation offers. And critics of this Supreme Court on both left and right are eager to find any other authority willing to countenance a different substantive view of rights, whether that be a right to be free of discrimination or a right to life.

At the same time, the Court increasingly has suggested that the legitimacy of such interpretations may be in doubt. In City of Boerne v. Flores and similar cases, it rejects, almost disdainfully, the notion that Congress might be a worthy interpretive partner in elaborating constitutional norms. And its opinion in a case holding that agency regulations prohibiting disparate impact discrimination are not privately enforceable might be read to imply that there is a serious constitutional doubt whether an agency can exercise the sort of independent constitutional interpretive authority Boerne seems to condemn. Tax practitioners may recall similar doubts about the Service's authority dating back to the controversy over Bob Jones University.

This Article strives to explain the sharp divergence between critical consensus and judicial reality, with the aim of finding a way to justify cooperation and republican deliberation to a doubting Court. I argue that existing accounts fail to explain judicial attitudes because they do not consider the unique institutional needs of federal judges. Most significantly, judicial claims to sole authority to interpret the Constitution may be part of the constitutive rhetoric of judging, through which the judiciary builds and entrenches a set of norms for its own behavior. These norms, when internalized by judges, help to distinguish judicial behavior from the ordinary politics that judicial review aspires to limit.

I conclude, however, that judicial rhetoric, even in combination with other plausible arguments in favor of exclusivity, is persuasive in at most a small fraction of the constitutional cases that come before courts. I therefore propose a method, based on a survey and synthesis of those arguments, that a court can use in deciding for any given agency interpretation whether the agency's decision is a permissible, complementary elaboration or an impermissible intrusion. I then show how the method offers important insights into, for example, the disputes over disparate impact regulations and the IRS's oversight of non-profit entities.

Publication Citation

33 Fla. St. U. L. Rev. 157 (2005-2006)