The general rule is that administrative agencies do not have jurisdiction to decide the constitutionality of a statute enacted by Congress[i]. However this rule is not mandatory, but is subject to Congress’s allocation of adjudicative responsibility[ii]. Administrative agencies may decide properly presented constitutional claims which do not challenge agency actions mandated by Congress[iii]. In Riggin v. Office of Senate Fair Employment Practices, 61 F.3d 1563 (Fed. Cir. 1995), the court held that an administrative agency lacks jurisdiction to decide a constitutional claim, when the constitutional claim asks the agency to act contrary to its statutory provisions. Further, the agency lacks jurisdiction, when the consequence of committing the issue to the agency would be to deny judicial review of the constitutional claim.
An agency may consider constitutional issues in construing and applying a statute or regulation[iv]. In Bonnichsen v. United States, Dep’t of the Army, 969 F. Supp. 628, 651 (D. Or. 1997), the court held that even if the agency cannot directly declare a statute unconstitutional, an agency may consider constitutional issues in construing and applying a statute or regulation. Although the administrative agencies may consider constitutional claims, the final say on constitutional matters rests with the courts[v].
[i] Riggin v. Office of Senate Fair Employment Practices, 61 F.3d 1563 (Fed. Cir. 1995)
[iii] McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of the Judicial Conf. of the United States, 264 F.3d 52 (D.C. Cir. 2001)
[iv] Bonnichsen v. United States, Dep’t of the Army, 969 F. Supp. 628 (D. Or. 1997)
[v] Singh v. Reno, 182 F.3d 504 (7th Cir. Wis. 1999)