This article explores how statutory public hearing requirements are one of many structural barriers preventing the reduction of discrimination. The formation of procedures governing public hearings is left to the discretion of individual agencies and most courts will not mandate robust process. Public hearings could provide a way for minority and low-income groups to mobilize opposition to particular actions, but current structures of hearings frustrates this potential. These public hearings, like the common ‘open house’ format, stymie efforts to create meaningful public involvement, perpetuating a systemic structural barrier to equal justice in administrative procedure.
This essay argues that a new oversight agency should monitor the Federal Reserve’s efforts to reduce racial inequality. If the Federal Reserve were to be required to reduce the racial wealth gap, how would policymakers and the public judge its performance? To close the racial wealth gap, we must first measure how the wealth gap persists through and across federal regulatory and legislative programs.
This essay argues that a new risk-forecasting tool reinforces racial disparities and emphasizes future risk in criminal sentencing. Pennsylvania recently rolled out a controversial sentencing risk assessment instrument designed to forecast a defendant’s relative risk of re-conviction for a new offense. Although the process of developing this instrument exemplifies responsive bureaucratic practice, this instrument is a lesson in well-intentioned but fundamentally misguided policy reform.
This article asks, ‘why is mainstream administrative law scholarship so color-blind, and what role should race play in administrative law going forward?’ The author argues that the administrative state is anemic, failing to protect the vulnerable members of our society including African-Americans and other people of color, and few inequities or risks to the vulnerable are likely to be solved without a capable administrative state. Critical race theory as applied to the administrative state could allow for an effective evaluation of agency applications of policy and programs. The author concludes by offering four observations regarding the color-blind nature of administrative law in an effort to describe and explain this phenomenon.
What are the dangers of using the category of race in medical and scientific research, or public health measures? Is there any justification in doing so? This article looks at the FDA and NIH mandate requiring the use of race and ethnicity since the late 1990s, arguing that race should not be used in this context. The author lays out several reasons why the use of racial categories in medical and scientific is, if anything, unscientific. While mandating categorizing subjects of medical studies by race allows for the study of health disparities among populations, the categories used can obscure more than they illuminate.
Many key administrative law cases have profound racial subtexts that are obscured or entirely left out of the decisions, a highly political choice often made by the Supreme Court. Administrative law has been remarkably resistant to the critique of the “perspectiveless mode” of legal analysis. The author uses INS v. Chadha as an example of how administrative law and professors miss or ignore the racial reality underlying key cases, eliminating a crucial opportunity to discuss racial inequity and unfairness and how systemic racism is encoded in the relationship between legal rules and social reality.
This essay argues that the Supreme Court’s administrative law decisions allow racial animus to motivate policy choices. The U.S. Supreme Court has submerged its analysis of racial animus under an arbitrary and capricious framework. In the past few years, the Court has found government justifications for exclusionary measures to be lacking—but has not acknowledged race to be the defect.
This article discusses how under the banner of nationalism, racism lives on in public policy and become politically and legally acceptable. The author argues that white supremacy has morphed into white nationalism during the Trump era. The articles examines the interaction of white nationalist rhetoric and colorblind ideologies in the law that impact this evolution by looking at Trump v. Hawaii and Trump’s response to COVID.
This essay argues that law students, lawyers, and academics need to reflect on efforts to make legal academia more inclusive. Journals and publications across the country appear recently to be aching for scholars of colors to fill their volumes. But have we actually been absent? Why now—amid death, violence, and riots—is my voice, our voices, so important?
This essay argues that empirical data suggest that law schools must do more to promote inclusion, not just diversity. The Law School Survey of Student Engagement introduced a new module, Diversity & Exclusion, that reveals significant differences in student experiences with diversity and inclusion based on race, ethnicity, gender, sexual orientation, first-generation status, debt level, and more.
This blog post explores how the public comment process for rulemaking under the APA offers an avenue for the public to place evidence regarding proposed policies and their racist or anti-racist nature, that the agency might not otherwise consider, into the administrative record. The author describes their public comment regarding a proposed FDA rule on mammography as an example of using the process to force an agency to reckon with information regarding race that could bear on the final rule. At a minimum, an agency has a legal obligation to consider the information in public comments which is why public participation and putting information on the record is so important in the rulemaking process.
International workers are crucial to the operation and success of American businesses. Regardless, there has historically been and continues to be strong animus in the United States towards foreign-born workers, particularly immigrants of color. The author examines how this animus has shaped legal structures controlling employment-based migration by looking at several different examples including the Chinese Exclusion Act, national origin quotas in place from 1924-1965, and Trump’s “Hire American” policy. The US has consistently failed to do away with racial exclusion in employment-based migration regardless of the purported goal of doing just that.
The author argues that it is imperative for administrative law courses to consider and respond to socioeconomic reality, including the pervasive problem of systemic racism. The Trump administrations actions increasing inequality and flouting procedural norms and the Covid-19 pandemic’s unequal impact expose the connection between administrative law and systemic racism that is often obscured, and highlight the need for including issues of race and ethnicity in administrative law courses. The article advocates for using the “Who What Where When Why and How” approach to provide structure for addressing socioeconomic issues in administrative law, along with several other suggestions that would improve the quality of such courses regarding race, ethnicity, and class.
This article posits that recognizing the history of Indian Affairs as an essential part of administrative law offers a deeper understanding of both American governmental history and the violent results that American government produced. The federal bureaucracy surrounding Indian Affairs, institutional structures, and policies, should be considered integral parts of administrative law as a field. Historically, they have not, because of an artificial separation due to race and the territorial schism between Native Americans and the rest of the United States.
Administrative power needs to be condemned as an instrument of prejudice and discrimination. The author uses the example of how administrative power tends to undermine the benefits of equal voting rights to make this point. Woodrow Wilson, father to the American administrative state, moved legislative power from the elected legislature into the hands of “the right sort of people” as a response to the diversity of the nation’s electorate. Administrative power remains systematically discriminatory due to the removal of legislative power from the representatives of a diverse public and the implications for minorities.
The author explains how racist and regressive leaders around the world are using administrative law to suppress and exert control over their opposition and subvert the rule of law. Administrative law has been captured and instrumentalized by such leaders, including Trump, in order to carry out and entrench nativists goals. In the United States, the other branches of government are standing by and watching this process play out.
This article discusses disparate outcomes from COVID and how they result from racial dynamics. The article describes COVIDs’ racial inequalities, explains how trade policies exacerbate lack of access to PPE, and suggests ways to pinpoint how administrative action adds to racial disparities. The author argues that problems with buying PPE critically impacts minority communities and results in disparate race-based health outcomes.
This essay covers how federal housing regulations reveal how the government has embedded racist policies in the administrative state. Part of the forgetting of the federal role in housing segregation may be distinctive to how we understand the administrative state and to how administrative bureaucracy operates, as the federal role in housing administration is obscured in deference to local prerogatives.
This essay argues that federal and state governments should prioritize funding preventative services rather than adopting reactive child removal policies. The reckoning over racial injustice, kindled by the hyper-criminalization of and excessive use of force against Black people, requires a closer examination of the “child welfare” system’s excessive regulation of families.
The author discusses her experience going through life as a white woman and how this has influenced her interaction with race and the law through scholarship and practice. The author argues that although she did not always view it this way, racism infects every bit of U.S. law, and administrative law is no exception.
This article explores the history and practices of welfare programs and social insurance as an explanation of the current exclusion of ‘the other,’ minority, and marginalized groups from the governments protection and investment. The author argues that today's racially disparate income inequalities and disparities in healthcare are a predictable result of this history. The article covers various examples in order to make this point and explore the dynamic.
This article argues that it is important to highlight diverse role models in the study of administrative law because it inspires students from all backgrounds and humanizes and motivates abstract questions in the field. The author offers suggestions for how to do this in the classroom and shares some of his own slides in order to help others teach leg-reg and admin law.
The article argues that the reliance on cost benefit analysis (CBA) by agencies in setting regulatory limits on risk tends to generate racially biased outcomes in many areas of risk regulation. As a result, racial bias is exacerbated and perpetuated while systemic racism is still alive and well. The articles examines how CBA perpetuates these problems by looking at several applications of CBA in agency decision making.
This article suggests examine the notice requirements of notice and comment rulemaking to analyze how systemic racism impacts administrative law. The factors responsible for systemic racism ensure that many minority groups are less likely to be monitoring the federal register, and as a result miss an opportunity to obtain actual notice of proposed agency action. This in turn affects marginalized group’s ability to participate in the rulemaking process, although public participation in rulemaking is a cornerstone of the process.
This article focuses on the disconnect between nature of the administrative state as an engine of inequality and the way that administrative law is taught. The author argues that this is a result of our macro-level scrutiny of the framework of administrative decisions and the general focus on the procedures, but not the racial issues underneath. Further, the author argues that we must incorporate viewpoints and methods from other academic disciplines to see how agency action connects to racial inequality in order to change this disconnect in the legal academic world.
This essay argues that the field of administrative law needs to engage in “critical re-readings” of its scholarship to test the mask of neutrality often imposed within this subdiscipline. What Black Lives Matters disrupts is a claim that has been central to the field of administrative law: that the administrative state acts in a neutral manner, and thus, scholars’ primary concern lies in outlining structural and procedural elements of bureaucratic decision-making.
This articles examines how acknowledging race changes our understanding of the history and practice of administrative law. The author argues that this is crucial for deepening our theoretical understanding of the field. Acknowledgment, however, is not the end of the story: we must acknowledge the systemic racism in the modern administrative state, assert that it poses a challenge to the fundamental questions of administrative law, and then find a new way of critical re-reading necessary for the development of the field.
This article explores the radicalization of the administrative state, and how the Critical Systems Thinking (CST) lens provide insight into the intersection of race and administrative law. The author discusses the background and theory of CST while explaining how the legal system is viewed through the CST lens. The article focuses on DACA, the Trump challenge to the policy, and the 2020 Supreme Court case upholding the practice in order to examine the racialized nature of administrative law and how the CST lens improves our understanding of this dynamic.
This article discusses how immigration law has contributed to shaping and reinforcing the construct of race more than any other area of administrative law. The author argues that today, two important dynamics are in play regarding racism in immigration law: discrimination disguised in facially neutral mechanisms, and the revival of expressly racist rhetoric in modern politics. The article looks to the history of immigration law to illustrate and analyze current and past problems of racism in practice.
This article argues that administrative law scholarship is missing a robust tradition of critical legal studies, which has rendered the model of analysis used inflexible and entrenched, with a stagnant scope, quality, and materiality. There is no comprehensive examination of administrative law’s contribution to subordination and marginalization through its history and practices. The authors discusses various suggestions that would allow administrative law scholarship to grow and flourish while moving away from the inert practices of old.
This article argues that the administrative could and should be more inclusive, and that it is far past time to have a real discussion of how to make this so. The author does not think that regulatory agencies are as permeated by overt racism as they were in the past, but structural or institutional racism still exists in our modern institutions and agencies. Rulemaking and lobbying dominated by corporate interests and the lack of participation in rulemaking by marginalized communities are discussed as examples of ongoing structural and institutional racism.
This article discusses the racial issues that underly the seminal administrative law Citizens to Preserve Overton Park v. Volpe, which established the basic legal framework for judicial review of the actions of administrative agencies. The article looks to the character and racial makeup of the particular neighborhoods potentially affected by the highway construction and planning decisions, and how the racial issues were largely unheard in the case and left out of the court decision.
This article examines discriminatory administration of agency rules that appear neutral on their face. The author looks to previous cases dealing with uneven and unequal administration of facially neutral laws that in practice deny equal justice, and focuses on a particular case dealing with the withholding of protective services for Native Americans based on their race. The article argues that discriminatory administration of the law continues when justice is not blind to race and ethnicity.
This article explores the disconnect between racial disparities in agency informal adjudicate funding decision and the arbitrary and capricious standard of review for informal adjudicatory decisions. The author argues that scholars should make a more deliberate attempt to reconcile this disconnect and gives examples of racial disparities in agency funding decisions and how they interact with the arbitrary and capricious standard. Finally, the articles uses the CARES act as a thought experiment for future discussion and analysis of the issue.
This article examines the racial roots and history of the modern administrative state and law. The author begins with the Fugitive Slave Act of 1850 and quickly moves to the Chinese Exclusion Act of 1882. The author argues that the seeds of of nearly all modern administrative law can be seen in the administration of Chinese exclusion, which embedded racial hierarchy into the rule of law. The foundation of the administrative state and law is racial exclusion.
This essay argues that creating an anti-racist administrative state requires confronting and dismantling historic, systemic racism. Discriminatory policies and dystopian professional practices are part and parcel of the American legal landscape. How do we reimagine and reorient regulatory agencies when considering their injurious legacy that lies at the confluence of administrative evil and administrative racism?
This essay argues that minority-owned businesses are vital to economic growth, but discriminatory lending hinders access to credit. Banks are not ensuring that all their employees treat prospective borrowers the same, regardless of their race and gender. Sensible regulation is needed to secure equal economic opportunity to all small businesses.
This article illustrates how the perspectives of Environmental Justice (EJ) and Geography show how administrative agencies can be instruments of strategic-structural racism and how administrative law can facilitate equity in regulation. The Environmental Justice movement shows us how public participation fails in the administrative state, and a geographic perspective allows us to examine whether agencies are likely to include or exclude marginalized communities. The Author argues that racially cognizant administrative state scholarship must include why, how, and where protections for participation fails, and encourages the use of the perspective of the EJ movement's history and practices, along with the geographic lens.