Justice Breyer’s Schuette concurring opinion had a very, very strong administrative law flavor to it. He accurately characterized what Prop 2 actually did. In the past, elected members of university boards would delegate decisions about admission policies to unelected faculties and administrators, without any guidance. With Prop 2, the people took that power away from the faculty and administrators, and put it into the Constitution. In a bizarre way, Breyer’s opinion is effectively a version of the non-delegation doctrine. He likes the fact that now the people can decide for themselves.
This case, in contrast, does not involve a reordering of the political process; it does not in fact involve the move- ment of decisionmaking from one political level to another. Rather, here, Michigan law delegated broad policymaking authority to elected university boards, see Mich. Const., Art. VIII, §5, but those boards delegated admissions- related decisionmaking authority to unelected university faculty members and administrators, see, e.g., Bylaws of Univ. of Mich. Bd. of Regents §8.01; Mich. State Univ. Bylaws of Bd. of Trustees, Preamble; Mich. State Univ. Bylaws for Academic Governance §4.4.3; Wayne State Univ. Stat. §§2–34–09, 2–34–12. Although the boards unquestionably retained the power to set policy regarding race-conscious admissions, see post, at 25–29 (SOTOMAYOR, J., dissenting), in fact faculty members and administrators set the race-conscious admissions policies in question. (It is often true that elected bodies— including, for example, school boards, city councils, and state legislatures—have the power to enact policies, but in fact delegate that power to administrators.) Although at limited times the university boards were advised of the content of their race-conscious admissions policies, see 701 F. 3d 466, 481–482 (CA6 2012), to my knowledge no board voted to accept or reject any of those policies. Thus, un- elected faculty members and administrators, not voters or their elected representatives, adopted the race-conscious admissions programs affected by Michigan’s constitutional amendment. The amendment took decisionmaking au- thority away from these unelected actors and placed it in the hands of the voters.
In fact, Breyer specifically cites his PCAOB dissent for the proposition that the political process theory cannot be applied to administrative law.
For another thing, to extend the holding of Hunter and Seattle to reach situations in which decisionmaking au- thority is moved from an administrative body to a political one would pose significant difficulties. The administrative process encompasses vast numbers of decisionmakers answering numerous policy questions in hosts of different fields. See Free Enterprise Fund v. Public Company Ac- counting Oversight Bd., 561 U. S. 477, ___ (2010) (BREYER, J., dissenting). Administrative bodies modify programs in detail, and decisionmaking authority within the adminis- trative process frequently moves around—due to amendments to statutes, new administrative rules, and evolving agency practice. It is thus particularly difficult in this context for judges to determine when a change in the locus of decisionmaking authority places a comparative struc- tural burden on a racial minority. And to apply Hunter and Seattle to the administrative process would, by tend- ing to hinder change, risk discouraging experimentation, interfering with efforts to see when and how race- conscious policies work.
Leave Admin Alone!
I know I give Justice Breyer a hard time, but he is dedicated and committed to the viewing the Constitution as a Democratic document. And it shows here.
Finally, the principle that underlies Hunter and Seattle runs up against a competing principle, discussed above. This competing principle favors decisionmaking though the democratic process. Just as this principle strongly supports the right of the people, or their elected repre- sentatives, to adopt race-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so.
Really his entire opinion is based on admin law.
As I have said, my discussion here is limited to circum- stances in which decisionmaking is moved from an un- elected administrative body to a politically responsive one, and in which the targeted race-conscious admissions programs consider race solely in order to obtain the educa- tional benefits of a diverse student body.
I wonder how he would have viewed the constitutionality of Prop 209, which didn’t have the same administrative wrinkles.
Update: Justice Sotomayor disagrees, strongly with Breyer’s valiant admin-law approach to equal protection.
JUSTICE BREYER concludes that Hunter and Seattle do not apply. Section 26, he reasons, did not move the rele- vant decisionmaking authority from one political level to another; rather, it removed that authority from “unelected actors and placed it in the hands of the voters.” Ante, at 5 (opinion concurring in judgment). He bases this conclu- sion on the premise that Michigan’s elected boards “dele- gated admissions-related decisionmaking authority to unelected university faculty members and administra- tors.” Ibid. But this premise is simply incorrect.