Notice & Comment

Ad Law Reading Room: Bijal Shah, “Administrative Subordination”

Today’s Ad Law Reading Room entry is “Administrative Subordination” by Professor Bijal Shah, which is forthcoming in the University of Chicago Law Review. Here is the abstract:

Much of the work on immigration enforcement and environmental justice assumes that agencies negatively impact vulnerable marginalized people as a result of individualized bias or arbitrariness in administration. This Article argues that, beyond idiosyncrasies or flaws in administrators themselves, the poor impact of administration on minorities emanates from institutional systems. In other words, agencies subordinate minority interests to the ends of administrative competence and self-preservation.

A healthy federal bureaucracy is maintained by administrative efforts to reduce institutional burdens, improve efficiency, conserve resources, and preserve the structures underlying the agency’s power to regulate. In addition, a conventional justification for the existence of agencies is that they act on behalf of the public interest, and public interest theories of regulation prize criteria such as efficiency. Administrative actors, therefore, are motivated to pursue these values in order to preserve the administrative state.

However, as this Article shows, agencies harm marginalized communities in order to pursue these institutional virtues. It argues that administrative behavior subordinates minorities to bureaucratic self-preservation in contexts plagued by injustice (including national security, immigration, environmental crisis, energy justice and land use law) and, accordingly, in agencies such as the Department of Homeland Security (DHS) and its immigration subcomponents; the Department of Justice (DOJ) and its immigration subcomponents; the Environmental Protection Agency (EPA), the Federal Emergency Management Agency (FEMA), and the Bureau of Land Management (BLM), among others.

For example, immigration officials at DHS use arrest records to decide who to deport, even if the targeted noncitizens were never convicted of a crime, because arrest records are inexpensive and accessible proxies for immigration data. FEMA failed to evacuate tens of thousands of poor people of color in the wake of Hurricane Katrina as a result of the systematic management of an institutional history of limited resources. BLM approves gas and oil leases in rural towns quickly, even though the resulting rapid labor expansion reduces the safety of Native women, because focusing on rural communities for energy project expansion allows the agency to streamline its environmental review process.

Essentially, agencies that are operating as expected perpetuate systematic bias. Ironically, by prioritizing public interest values (such as efficiency), agencies may, in fact, cause harm. Ultimately, this renders agencies less efficient, to the extent efficiency requires not only speed and cost-savings, but also fair process and just outcomes. This Article’s prescription is for institutional redesign – from the top-down, filtered through legislation; from the bottom up, instigated by the President or agencies themselves; and with a focus on reviving a government of small, discrete agencies – in order to constrain administrative discretion in ways that encourage agencies to rebalance their priorities in the implementation of law.

Shah’s article powerfully catalogues how agencies’ pursuit of seemingly benign institutional values, such as administrative efficiency, may work harm to marginalized communities. In doing so, Shah moves the field away from an exclusive focus how individualized bias may affect agency decisionmaking in discrete cases. And by more comprehensively diagnosing the problem, Shah is able to offer a number of creative solutions targeted to the institutional drivers of agency behavior.

More broadly, “Administrative Subordination” provides a model of administrative-law scholarship that (to borrow Shah’s words) “forefronts work from immigration empiricists and environmental justice advocates, as well as scholarship that is grassroots and engaged in critical theory, which has been marginalized in conversations about the fundamental commitments of administrative law and the separation of powers.” As Shah has written at this blog, the field of administrative law is in need of such boundary-pushing work, and “Administrative Subordination” will hopefully inspire more to do it.

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.

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