Today’s Ad Law Reading Room entry is “The Administrative State’s Second Face,” by Emily Chertoff and Jessica Bulman-Pozen, which is forthcoming in the NYU Law Review. Here is the abstract:

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that governs it. While first-face administrative law demands delegated authority, transparent justification, and democratic collaboration, second-face administrative law allows agencies to operate without specific grants of power, to process knowledge in secret, and to control populations. Second-face administrative law inverts the ordinary norms of first-face administrative law. And where the first face drives legal and political conflict, the second face enjoys consensus.

Bringing the second face into view qualifies talk of an ongoing “attack” on the administrative state. It calls attention to neglected issues of enforcement, allows us to analyze how administrative law supports an interrelated set of violent state structures, and reveals that consensus support for second-face agencies is misguided. Those who seek to combat government overreach and to protect liberty and popular self-governance should turn their attention to the administrative state’s second face.

This Article serves as a powerful summation of several nascent trends in administrative-law scholarship as well as an illuminating roadmap for future work. Those trends include a renewed interest in enforcement and the administrative state as a realm of state violence; increased attention to defense, national security, and carceral institutions as sites of inquiry; and a burgeoning challenge to administrative law’s traditional claim to transsubstantivity. In bringing together these pieces, “The Administrative State’s Second Face” complicates the story that paints a singular administrative state under increasing threat. In fact, Chertoff and Bulman-Pozen contend that certain agencies (those of the “second face”) have in fact been thriving, often feeding off legal standards that appear almost the opposite of those that work to constrain the more “typical” agencies. An important and eye-opening piece.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.