The Challenge of Administrative Legitimation in the Racist State, by Kali Murray
I once attended a conference in Canada that started with a Land Acknowledgement. A Land Acknowledgement is an official recognition that the land where we all stood was once occupied by an indigenous community. In many respects, this Symposium is undergoing a similar act of acknowledgment as it seeks to recognize how social identities, such as race[1], shape how we write and teach in this area.
Acknowledgement, though, only works if we first identify what has been erased by our failure to consider race in this field. What do I mean by erased? Pick up any administrative law book and look to its often-anodyne re-counting of the origins of administrative law. The textbook will likely start with the origins of the administrative state in the early republic, then discuss the emergence of the modern administrative state in the Progressive and New Deal era (culminating in the Administrative Procedure Act), and conclude with the changes to the administrative state from the 1960s and 1970s. As the many contributions of this Symposium suggest, however, this version of the origins of modern administrative law often erases a more complicated, contested history within administrative law.
Acknowledging race shifts how we see these formative periods within administrative law. The republican theory of regulation was compromised by the grinding bureaucracy of slavery. The modern administrative state of the Progressive and New Deal eras was inextricably intertwined with modern systematic racism—including President Woodrow Wilson’s segregation of the federal workforce during the Progressive Era, or the administrative innovation of redlining that was used to diminish the wealth of Black neighborhoods during the New Deal. Social movements in environment, civil rights, sexual orientation, feminism, and class generated significant doctrinal changes in administrative law.
By erasing this complicated history, we have often cordoned off administrative law in a way that fundamentally neuters its practical and scholarly impact. As others in this Symposium have noted, we have cordoned it off from vibrant sub-fields such as poverty law, environmental law and civil rights Law; we have not fully grappled with the ways in which critical methods can shape our understanding of the scope of the field; and we ignored the ways in which administrative procedures themselves can reflect structural racism.
As others in this Symposium have discussed, acknowledging race in administrative law is not only important at a descriptive level, but it matters because its helps to deepen our theoretical understanding of the field. Take for instance, a fundamental question of administrative law—how we legitimate agency action within a functional democracy. Our standard narrative in administrative law sees agency legitimation as a competition between structural legitimation, which claims that agency legitimation arises from an appropriate division of authority between the legislative, executive, and judicial branches to oversee the agency, and administrative legitimation, in which authority derives from rational action pursued by the agency.
Acknowledging the existence of racism challenges both methods of agency legitimation because it forces us to contemplate whether an administrative state that is both formed by racism and utilizes tools that generate racism can ever be legitimate? For instance, take the structural conundrum posed by Section I of the Fugitive Slave Act of 1850, which granted courts the ability to create commissioners that would oversee the return of enslaved persons. A primary critique of the Act was that by enlisting judges to supervise the commissioners, it imposed an anti-democratic structure on the local community, and moreover, the structure of the Act was fundamentally illegitimate because the commissioner’s determination deprived individuals of rights without sufficient due process. Frederick Douglass, commenting on the Fugitive Slave Act, noted:
[b]ut it has been said this law is constitutional—if it were, it would equally the legitimate sphere of government to repeal it. I am proud to be one of the disciples of Gerrit Smith, and this is his doctrine; and he only utters what all law writers have said who have risen to any eminence. Human government is for the protection of rights; and when human government destroys human rights, it ceases to be a government, and becomes a foul and blasting conspiracy; and is entitled to no respect whatever.[2]
Likewise, systematic racism undermines the claim that an agency’s action is legitimate when an agency is acting in a rational manner. As Jennifer Alexander notes, “[i]f administrative action must embody the will of the people and racism is an integral, yet largely invisible, component of the customary morality, then administrators have little anchor for justifying action outside of that context.”[3] Thus, in this view, systematic racism lead to systematic irrationality of government power, thus undermining agency legitimation in a democratic society.
Acknowledging the impact of systematic racism on the question of agency legitimacy, of course, does not necessarily end the conversation. Here I think it is important to see that theorists of the modern administrative state, as well as the legal structure of the administrative state, grappled with the way to resolve the problem of legitimation in light of systematic racism. For example, Blake Emerson in The Public’s Law: Origins and Architecture of Progressive Democracy, analyzes how W.E.B. DuBois constructed a philosophical framework that drew a “direct link between bureaucratic governance and the norm of freedom,”[4] which suggested that bureaucratic intervention was necessary to support institutional and material freedom of African-Americans, which was in turn necessary for laying the “groundwork for a racially inclusive democratic society.”[5] Thus, Emerson concludes that we have to trace the origins of Progressive administrative theory “not merely to the civil service reforms of the Pendleton Act and the regulatory interventions of the Interstate Commerce Commission but further back, to the ephemeral effort of the federal government to protect the rights of freed African Americans in the southern states in the wake of the Civil War.”[6]
Emerson’s work is useful in understanding agency legitimation and the challenge of systemic racism. First, Emerson usefully highlights a Black intellectual tradition that grapples with the questions of state and legitimacy. (Arguably, another source in the same vein is anti-colonial intellectual theory within the Caribbean, African and Southeast Asian context.) Second, Emerson’s work suggests that administrative teaching and scholarship should engage with a range of “anti-racist” administrative actions that are not typically discussed in administrative law classes such as
the Emancipation Proclamation[7] (an executive order, as administrative lawyers are fond of pointing out), and the successive Freedman’s Bureau Acts.[8]
Toni Morrison, in her magisterial work, Playing in the Dark: Whiteness and the Literary Imagination, sought to explore the ways in which racial consciousness shaped the experience of white writers. I (and other participants in this Symposium) do something akin to her work in administrative law scholarship: first, by acknowledging that systematic racism is bound up in our modern administrative state and thus not erasing it from the picture; second, by suggesting that systematic racism poses a challenge to the foundational questions of our field, including the problem of administrative legitimation itself, and finally, offering a new way of critical re-reading necessary for the development of our field.
Kali Murray is a Professor of Law at Marquette University Law School. Follow her at Twitter here.
[1]I would assert that other social identities such as gender, sexual orientation, class, religion, and color may prove useful in an analysis as well.
[2]Frederick Douglass, The Fugitive Slave Act, Speech to the National Free Soil Convention, Pittsburgh, August 15, 1852, available at https://rbscp.lib.rochester.edu/4385 (last visited August 18, 2020).
[3]Jennifer Alexander, Avoiding the Issue: Racisms and Administrative Responsibility in Public Administration, 27 American Review of Public Administration 344 (1997).
[4]Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 4 (2019)
[5]Id.
[6]Id.
[7]Emancipation Proclamation, January 1, 1883, Presidential Proclamations, 1791-1991, Record Group 11, General Records of the United States Government, National Archives.
[8]An Act to Establish a Bureau for the Relief of Freedman and Refugees, 38th Congress, Ch. 90, Vol. XIII, 507 (1865); An Act to Continue in Force and to Amend” An Act to Establish a Bureau for the Relief of Freedman and Refugees” 39th Congress, Ch. 200 174 (1866).
