Most of administrative law scholarship, and certainly the most widely cited and acclaimed scholarly contributions to the field, appear to be color-blind.^[1]  Most leading administrative law decisions seem to be so as well. Should we as scholars and thinkers in the field stand chastened by such a state of affairs?  What role should race assume in administrative law going forward? Can critical race theory break into the field?  

As will be evident in this post, asking such questions is far easier than providing any meaningful answers. 

The “Liberty” Critique of the Administrative State and Overcriminalization

One major current in administrative law, spawning many tributaries, is what we might call a “liberty-based” critique of the administrative state.  Under such a view, the administrative state’s essential organizational units, administrative agencies, are illegitimate. They combine powers that should be separated.^[2]  They are too invasive and provide too few protections for those unfortunate enough to attract to their attention.^[3]  They are too arbitrary.  They are too untethered from the political control of elected officials, though to some the only elected official who really seems to count is the President.^[4]  Administrative agencies are, in short, largely illegitimate, willful, and out-of-control Leviathans.

Ironically, one of the most direct discussions drawing the link between concerns about overcriminalization and police abuse, which have again assumed prominence following George Floyd’s slaying, and an overall assessment of the administrative state emanates from the Cato Institute. The Cato Institute is hardly an institution associated with the critical race theory movement, but often a font of liberty-based critiques of the administrative state.

By way of background, regulation and the administrative state are designed to effectively counteract the use of private power by those privileged to harm, and even deprive of “liberty,” the less powerful.  The less powerful include employees, borrowers, consumers, those threatened by a polluted environment, and victims of racial, ethnic, or gender discrimination.  Of course we view the societal baseline as “the free market” or freedom to do as one likes, and consider regulation, i.e., the limitation of those freedoms, an aberration.^[5]  Thus, the freedom gained by the disadvantaged (or, if you prefer, the harmed) as a result of the imposition of government regulations upon the powerful is often not viewed as an form of liberty equivalent to that correspondingly lost by those whose freedom from government intrusion is impaired. 

At bottom, theories designed to de-legitimize or disable the administrative state significantly undermine the government’s ability to intervene in moderating or correcting imbalances that result from imbalances in private power.  Proponents of such theories might argue that regulation is fine, but should be accomplished by the means envisioned before the administrative state’s emergence.  Those means require elected legislators to enact statutes, the executive branch to bring suits against violators, and judges in the actual Judicial Branch to resolve the disputes.

The Cato Institute’s discussion of “overcriminalization” in its Handbook for Policymakers lays out indisputable facts that scholars of color (and others) have pointed to for years in making the case that our society incarcerates far too many.  However, the Cato Institute’s solutions involve making reforms to the administrative state, in particular: (a) restoring the rule of lenity, (b) reducing the number of regulatory crimes and agencies’ power to create them, and (c) making “ignorance of the law” a defense.  

But the Cato Institute’s argument seems a cynical use of our chronic overcriminalization problem.  After all, prisons and correctional institutions are not filled with executives who have violated banking regulations, EPA’s environmental rules, NHTSA Motor Vehicle Safety Standards, or other regulatory requirements.  And immigration detention centers are not packed with employers who have hired undocumented aliens or professionals who have violated picayune regulations or guidance documents in completing their immigration forms when seeking to enter the country.  Prisons are filled with people convicted of drug-related offenses or malum in se crimes.  And immigration detention centers are filled with poor aliens seeking a better life, at least, and often safety from persecution or death at “home.”  

The Cato critique may be a fine critique of the administrative state, but it has little to do with the real reason for over-crowded jails or the often harmful, denigrating, and occasionally fatal interactions between local law enforcement with citizens of color.  Again, it’s not bankers, corporate executives, and the like who are routinely subjected to “stop and frisk” searches or need fear having guns drawn, pointed, and fired at them when they encounter the police (unless, of course, those bankers, executives, and the like are either people of color or people who do not appear to be “respectable”). 

The Anemic Administrative State

But there is another story of the administrative state. It is not a story of an ever-active, overbearing Leviathan.  In this alternative account, the administrative state routinely fails to live up to its responsibilities to counteract those who wield private power. In other words, the administrative state fails to protect the vulnerable members of our society.  Among the vulnerable segments of American society are African-Americans and other people of color, as well as workers, consumers, borrowers, and the like.  

Take, for example, the federal/state program to address railroad grade crossing accidents.  Rather than rely on the tort system to sort out the problem,^[6] the federal government promulgated standards for rail crossings and financed states’ efforts to address deficient crossings.^[7]  The state would identify and prioritize deficient crossings and would then expend federal grant money to effectuate those solutions in accordance with their list of priorities.

In theory, the program could virtually eliminate at-grade railroad crossing accidents.  But a Pulitzer Prize winning two-part New York Times series showed that the program had failed to live up to its potential.^[8]  Despite railroads’ legal obligations to report all at-grade railroad crossing accidents in a timely manner to the Federal Railroad Administration (“the FRA”), FRA officials reportedly advised railroads to stop doing so—there were just too many reports to handle.^[9]  It took an approximately 25-year effort by the National Transportation Safety Board to convince regulators to adopt a regulation requiring black boxes on trains. (And even then regulators did not require that those black boxes be crashworthy!)^[10]  Federally funded automatic gates, flashing lights, and alarms meant to prevent motorists from proceeding across tracks when a train was about to cross the road at grade were late coming down, flashing, and sounding off.^[11]  

The FRA’s woeful performance, as revealed in the New York Times’ exposé, raises an obvious question: why had the railroad crossing program been such a failure?  The answer could involve assessing “agency capture,” placement of some elements of the safety function in the wrong institutional framework, or agencies’ lack of resources to fulfill their missions.  Exploration of these and other causes of regulatory failure are typical subjects explored by administrative law or public administration scholars.  

Okay. So the Leviathan may at times be anemic, but what does this have to do with race?

The critical race theorist might dig deeper into the government response to railroad grade crossing accidents.^[12]  A critical race theorist might ask whether the failure to address the danger of at-grade railroad crossings has been uniform across the board.  In other words, do all lives really matter or is that just a clever slogan that serves to forestall discussion of racial disparities in treatment? ^[13]

Separation of railroads and roadways can be effectuated by moving railroad tracks above or below the roadway being crossed.  Has this been accomplished in some communities, and, if so, in which ones?  I suspect separation is less frequently employed in poor and African-American neighborhoods than in wealthier and White neighborhoods.  It would also be interesting to see data setting forth the demographics of those who die in railroad grade crossings, in addition to data regarding the geographic location of the remaining at-grade crossings.

In the same vein, one might ask how the Federal Communications Commission has sought to address the “digital divide,” the fact that the quality of digital services, on average, are poorer for people of color or the poor than for others.^[14]  One might wonder why the Equal Employment Opportunity Commission took so long to seek data from private employers on pay equity.^[15]  Or one might question federal responses to weather emergencies.  How is it that Puerto Rico was treated so much differently than Houston when near simultaneous hurricanes, hurricanes Harvey and Maria, struck in 2017.^[16]  And why is it that the people on roofs and highway overpasses and in the New Orleans Superdome desperately seeking rescue after Hurricane Katrina were predominantly African-Americans and people of color?

In any event, few societal inequities or risks to the vulnerable are likely to be effectively addressed in the absence of a capable administrative state.  So the scholarly attack on the administrative state lowers many boats, not just those of people of color, but also those of consumers, labor, and environmental enthusiasts.

Why is Mainstream Administrative Law Scholarship Seemingly So Color-Blind?

The remainder of this piece offers four observations regarding administrative law’s color-blindness.  The observations are more descriptive than normative.

First, my sense is that critical race theorist focuses much more intently on the impact of governmental policy and the racialized assumptions underlying it, than upon the process by which government policy is created.^[17]  This is not to say that processes, including administrative processes, can’t have substantive biases (including biases of interest to critical race scholars).  For example, the law of standing, particularly in federal courts, encodes a bias toward regulated entities and against regulatory beneficiaries.  Regulated entities almost always have “standing” to challenge agency decisions that impose obligations upon them, i.e., just about any decision they consider unfavorable.  On the other hand, if agencies reach decisions that disappoint potential beneficiaries of an agency regulatory initiative, standing is more difficult to establish.^[18]  Environmental cases provide the classic example of this phenomenon, but Allen v. Wright, 468 U.S. 737 (1984), and Office of Communication of the United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966),^[19] exemplify the challenges African-Americans have faced in establishing standing in court or an entitlement to participate in agency proceedings in seeking to prod federal agencies to properly respond to discriminatory conduct by private actors.^[20]

Nevertheless, I’m not sure that focusing on process issues, such as reasoned decision-making, ensuring broad-scale participation, transparency, political accountability, and the availability and scope of judicial review, is necessarily fertile grounds for a critique of the administrative state as contributing to racial injustice.  The more potent critique is likely based on policy analysis of the substance of the actions that agencies take, the decisions they make, and the unexamined assumptions that underlie them.

However, this weakness in terms engaging critical race theorists is also a strength of the field of administrative law (or at least the field’s current cynosure).  The focus on process provides a common ground for scholars of vastly different ideological commitments to come together to discuss the administrative state.  We can thus assess and argue about administrative law matters somewhat separately from our views on public policy issues.

Second, procedure can be critically important with regard to unmasking discriminatory actions and ensuring racial justice.  Often departures from set or customary procedures can provide reliable indicia of discriminatory government action.^[21]  And such discoveries can lead to requiring the government to reconsider its decisions without a discriminatory motive or may even result in the government action being invalidated altogether.  

This is where the Trump Administration has often come to grief in its barely concealed efforts to harm various marginalized groups.  The Administration barely prevailed on its travel ban, and only after two revisions of the ban.^[22]  The termination of Deferred Action for Childhood Arrivals (“DACA”) program was found invalid because of the inadequacy of the Department of Homeland Security’s (“DHS”) initial explanation for terminating the program, and its failure to fully reexamine the issue after that initial explanation was found wanting.^[23]  Departures from the customary procedures for considering adding questions to the decennial census, plus outright dishonesty in describing the origins of the decision, doomed the effort to separately identify (and thus almost certainly undercount) undocumented aliens in the census.^[24]  In my posts, I’ve highlighted some other procedural deficiencies that have or threatened to derail administrative initiatives.^[25]

Third, administrative law teaching and scholarship focuses on the national government, not state and local governments.  There are exceptions to this of course.  But largely, sub-national administrative law appears to be left to courses in state and local government law.  Administrative law scholars’ national focus is understandable.  It is easier to teach about and research the administrative law applicable to one government, even a large one with varied agencies, than the administrative law of fifty different states.  Indeed, it is hard enough to do justice to federal administrative law.  (And focusing on the administrative law of a particular state is of limited use at “national” law schools, where many of the leaders in the field teach.)

But many of the problems that impact the lived experience of people of color on a daily basis involve local governments, problems like police-citizen interactions, primary and secondary education, zoning, the siting of undesirable uses (such as sanitation and waste treatment facilities), and deficient infrastructure (think the Flint, Michigan water crisis).  Indeed, even decisions about which at-grade crossing will be eliminated may have more to do with state-level, rather than federal-level, decision-making.  Because our communities are often largely segregated by race, ethnicity, or class, the differential impact of local decisions along such lines may be much more apparent to local decision-makers.  Of course, there are exceptions to this postulate regarding the more direct effect of state and local government decisions.  For example, immigration issues have a profound and direct impact on the lived experiences of people of color.  Nevertheless, because we as administrative law scholars and teachers focus on federal administrative law, we often have little to say about police-citizen interactions, primary and secondary education, zoning, and the like. 

Fourth, some official actions are not terribly amenable to the constraints that we consider to be at the core of administrative law.  Sometimes line officials must have significant discretion and must be able to act before their actions can be interdicted or constrained by agency managers, elected chief executive and legislative officials, or courts.^[26]  Policing is one such area.  This is not to say that administrative law scholars have nothing to offer with regard to the debates over the future of policing.  We can certainly expound upon the usefulness and limitations of adopting rules to constrain discretion and the importance of transparency.  But typically, administrative law scholars focus of rulemaking, adjudication, and even enforcement decisions that can be subjected to internal agency review, as well as review by a chief executive, a legislative body, and/or the courts beforegoing into effect.  And certainly rulemaking and adjudication (though perhaps not regulatory enforcement decisions) are amenable to participatory processes.  

Ironically, administrative law may provide an obstacle to holding police officers accountable for abuse of authority and dismissing officers when early warning signs of their unsuitability for the police force appear.  Though police departments often cannot stop individual officers from abusing their authority ex ante, they can discipline and remove officers ex post.  Such measures can discourage officers from abusing their authority in the future or deprive them of the power to do so by removing their authority altogether.  

But here, administrative law concerns, specifically concerns regarding procedural fairness in administrative adjudication, are likely to make disciplining and removing police officers more difficult.  In many ways, the focus on the recognition of tenure in government service as a “property” right protected by procedural due process and the Mathews v. Eldridge test for what process is “due,”^[27] constrain imposition of such discipline and removal of officers.  The Mathews v. Eldridge balancing test places a thumb on the scale, prioritizing protecting the government employee, and does not fully account for the interest of member of the community in being free from abusive policing.  Community members’ interest is subsumed in consideration of the government’s interest in a derivative manner that is not particularly effective.  

In Gilbert v. Homar, 520 U.S. 924 (1997), involving a university police officer’s suspension without pay upon being arrested on drug-related charges, the Supreme Court held that no pre-deprivation hearing was necessary.  The Court recognized the government’s interest in maintaining “public confidence” in “employees who occupy positions of great public trust and high public visibility,” like police officers, id. at 932, ^[28]  but did not consider that the decisive factor.  Rather, the Court found most significant the fact that the officer had been charged with a felony, which dramatically reduced the risk of erroneous deprivation of pay without a pre-deprivation hearing.  Id. at 933-34.  The Court noted that a prompt post-deprivation hearing was constitutionally required, particularly once the charges were dropped. Id. at 935-36.  Though the charges against officer Homar did not involve use of force (and Gilbert v. Homar really involved Pennsylvania’s Governor’s policy that any employee be automatically suspended without pay upon being charged with a felony, id. at 933), at least some lower court cases involving officers accused of using, condoning, or hiding excessive use of force fail to give sufficient weight to the fears of the members of the community potentially subject to excessive use of force.^[29]

Conclusion

This contribution has largely described what administrative law is rather than what it might become.  I have done more perhaps to attempt to explain administrative law’s current color-blindness than to sketch out a more robust color-conscious administrative law (or, if you prefer, an anti-racist administrative law).  As I acknowledged at the start, the questions raised to open this post are far easier to ask than to answer.

As I was completing the penultimate revision on this post, I learned of the death of the Honorable John Lewis and Reverend Cordy Tindell “C.T.” Vivian, two civil rights titans.  They were two of a dwindling number of civil rights leaders who provide us with direct links to Dr. Martin Luther King, Jr. and the Civil Rights Movement of the 1960’s.  I dedicate this piece to their memory.

Bernard Bell is a Professor and Herbert Hannoch Scholar at Rutgers Law School. 

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^[1] My own administrative law articles have been no less color-blind.  However, my posts on this blog have tackled some issues relating to race and gender. See note 25 infra.

^[2] See, e.g., PHILLIP HAMBURGER, IS ADMINISTRATIVE LAW UNCONSTITUTIONAL? 1-14, 15 & n.1 (2014).  Hamburger cites an impressive list of scholars as challenging the constitutionality of key elements of the administrative state.

^[3] See, e.g., Executive Order on Promoting the Rule of Law through Transparency and Fairness in Civil Administrative Enforcement and Adjudication, Exec. Order 13892, 84 Fed. Reg. 55239 (October 9, 2019).  

^[4] See, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 496-97 (2010); Seila Law, LLC v. Consumer Finance Protection Bureau, 2020 WL 3492641, *4, *14-16 (June 29, 2020).

^[5] This is the only way to make sense of President Ronald Reagan’s assertion, in his first inaugural address, that “government is not the solution to our problem, government is the problem.”  Ronald Reagan, Inaugural Address (Jan. 20, 1981).  Government stands behind both common law rights and “regulation” limiting those rights.  Only by conceiving of our baseline as the regime of common law rights, can we view government as being involved only when it is engaged in regulation to limit individuals’ exercise of those common law rights.

^[6] The classic cases taught in first-year torts are Baltimore & Ohio RR. v. Goodman, 275 U.S. 66 (1927), and Pokora V. Wabash Ry. Co., 292 U.S. 98 (1934).

^[7] In 1970, Congress enacted the Federal Railroad Safety Act, Pub. L. 91–458, Title II, 84 Stat. 971 (Oct. 16, 1970), “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” Id., § 101 (currently codified at 49 U.S.C. § 20101).  Among the Secretary of Transportation’s responsibilities in this regard, was “maintain[ing] a coordinated effort to develop and carry out solutions to the railroad grade crossing problem.” Id., § 204(b)(currently codified at 49 U.S.C. § 20134(a)).  Three years later Congress enacted the Highway Safety Act of 1973, Pub. L. 93-90, 87 Stat. 282, §203 (Aug. 14, 1973), which, among other things, created the Federal Railway-Highway Crossings Program. See, 23 U.S.C. § 130.

^[8] See Walt Bogdanich, “In Deaths at Rail Crossing, Missing Evidence and Silence,” New York Times, July 11, 2004; Walt Bogdanich, “A Crossing Crash Unreported, And a Family Broken by Grief,” New York Times, July 12, 2004. 

^[9] In Deaths at Rail Crossings, supra.

^[10] Id.

^[11] Id.

^[12] For a quick introduction to critical race theory, see RICHARD DELGADO & JEAN STEFANCIC, CRITICAL RACE THEORY: AN INTRODUCTION (3d ed. 2017).

^[13] I’m amazed that “ALL LIVES MATTER” is seen as an appropriate response to the phrase “BLACK LIVES MATTER.”  It is only so if one interprets “BLACK LIVES MATTER” to mean “ONLY BLACK LIVES MATTER,” not “BLACK LIVES MATTER TOO.” Such a distortion of the phrase’s meaning is equivalent to interpreting the signs held by civil rights marchers in the 1960-s proclaiming “I AM A MAN” to mean “ONLY I AM A MAN,” rather than “I AM A MAN TOO.”

^[14] For a brief discussion of the current state of the digital divide and what can be done about it, see Jabari Simama, It’s 2020. Why Is the Digital Divide Still with Us?, GOVERNING: THE FUTURE OF STATES AND LOCALITIES (March 5, 2020).  See generally, Andrew Perrin & Erica Turner, Smartphones Help Blacks, Hispanics Bridge Some – But Not All – Digital Gaps With Whites, (Pew Research Center Factank (Aug 20, 2019); “Digital Divide — Overview.”

^[15] See, Bernard Bell, “Equal Pay for Equal Work” & Overturning Close to “Midnight” Actions, YALE J. ON REG.: NOTICE & COMMENT (March 10, 2019).

^[16] DANNY VINIK, How Trump favored Texas over Puerto Rico, Politico (March 27, 2018). 

^[17] For example, in the introduction to their casebook entitled RACE AND RACES: CASES AND RESOURCES FOR A DIVERSE AMERICA (2nd ed. 2007), Juan Perea and his co-authors list critical questions that should guide [the] study of race.  Only eighth, do the authors list “[p]ractices, rules, and legal doctrines often benefit one group (usually the majority) at the expense of another.”  Id. at 3-4.  The introduction and table of contents are accessible on SSRN here.

^[18] The inaction doctrine poses similar challenges for potential regulatory beneficiaries. See, Heckler v. Cheney, 470 U.S. 821, 831-32 (1985); Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64-65 (2004).

^[19] See, Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 897 (1983).  In a speech a Suffolk Law School, the-D.C. Circuit Judge Scalia remarked:

“Does what I say mean that, so long as no minority interests are affected, “important legislative purposes, heralded in the hall of Congress, [can be] lost or misdirected in the vast hallways of the federal bureaucracy?” Of course it does–and a good thing, too. Where no peculiar harm to particular individuals or minorities is in question, lots of once-heralded programs ought to get lost or misdirected, in vast hallways or elsewhere. Yesterday’s herald is today’s bore–although we judges, in the seclusion of our chambers, may not be au courant to realize it.”

Granted, the italicized portions do seem to make exceptions for minority interests, but what exactly did Justice Scalia mean by a minority interest, and are those simply throw-away phrases?

^[20] See, Jerry L. Anderson, Devil in the Details: Structural Racism in Administrative Hearings, YALE J. ON REG.: NOTICE & COMMENT (July 14, 2020)(describing how the structure of public hearings frustrates mobilization of community opposition to harmful project and thus contributes to environmental racism).

^[21] See, Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267 (1977).  

^[22] Trump v. Hawaii, 138 S.Ct. 2392 (June 26, 2018).  

^[23] Department of Homeland Security v. Regents of the University of California, 140 S.Ct. 1891 (June 18, 2020). 

^[24] Department of Commerce v. New York, 139 S.Ct. 2551 (June 27, 2019). 

^[25] See, e.g., Unblocking the Path for Abused, Neglected, and Abandoned Juvenile Immigrants: R.F.M. v. Nielsen, 36 YALE J. ON REG.: NOTICE & COMMENT (March 26, 2019); “Equal Pay for Equal Work” & Overturning Close to “Midnight” Actions, YALE J. ON REG.: NOTICE & COMMENT (March 10, 2019); TPP . . P, YALE J. ON REG.: NOTICE & COMMENT (June 5, 2018).

^[26] See, Bernard W. Bell, Reexamining Bivens After Ziglar v. Abbasi, 9 ConLawNOW 77, 85-87 (2017-18).

^[27] Mathews v. Eldridge, 424 U.S. 319,334-35 (1976).  Under the test:

“identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

^[28] This is hardly sufficient to capture the interest of members of the community have in being free from the fear that a police officer will use excessive force against them, possibly killing them, and then covering up his misdeeds.

^[29] See, Schmidt v. Creedon, 639 F.3d 587 (3d Cir. 2011)(entitlement pre-deprivation hearing before suspension); Policeman’s Benevolent & Protective Assn v. City of Chicago, 2020 WL 291371 (N.D. Ill. Jan. 21, 2020) (reinstatement of supervisor Stephen Panko to active duty after the shooting of Laquan McDonald during the period a subordinate was prosecuted for murder.)