Notice & Comment

Administrative Discrimination, by Philip Hamburger

It has been good to read Notice and Comment’s symposium on racism in administrative power. Questions of prejudice and discrimination have long been left at the margins of the academic study of such power, and the symposium is a gratifying signal that such concerns are at last being accepted as more central.

Of course, some of us have been discussing these questions for years—indeed, from an angle that has sometimes been condemned as too critical. So, it seems important to point out just how much administrative power deserves to be condemned as an instrument of prejudice—something I just did in a piece called Administrative Discrimination. Drawing on my earlier scholarship, it summarizes some leading ways in which administrative power has been prejudiced and, indeed, remains structurally discriminatory.

Rather than recite all of my examples, I will simply mention the tendency of administrative power to undermine the benefits of equal voting rights. Woodrow Wilson—the founding father of the American administrative state—candidly explained that administrative power was a response to the diversity of the nation’s electorate. Writing in “The Study of Administration” (1887), he worried that, because of the diversity of the nation, the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes.” Thus, “in order to get a footing for new doctrine, one must influence minds cast in every mold of race, minds inheriting every bias of environ­ment, warped by the histories of a score of different nations, warmed or chilled, closed or expanded by almost every climate of the globe.” Rather than try to persuade such persons, Wilson welcomed administrative governance. The people could still have their republic, but much legislative power would be shifted out of the elected legislature and into the hands of the right sort of people.

Even if overt prejudice no longer infected administrative power, administrative power remains systematically discriminatory, because the removal of legislative power from the representatives of a diverse people has implications for minorities. Individually, administrators may be concerned about all Americans, but their power is structured in a way designed to cut off the political demands with which, in a representative system of government, local and other dis­tinctive communities can protect themselves. The growth of administrative power therefore cannot be understood apart from the development of equal suffrage. The gain in popular suffrage has been accompanied by a shift of legis­lative power out of Congress, and this redistribution of legislative power makes a mockery of the struggle for equal voting rights.

Of course, neither this nor the other observations in Administrative Discrimination are new. They have all been explored in my earlier scholarship. But this essay at least collects such observations in one place to show the irremediably discriminatory character of administrative power. Discrimination is the origin and the very nature of the beast.

Philip Hamburger is the Maurice & Hilda Friedman Professor of Law at Columbia Law School.

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