Decolonizing Chadha, by Rebecca Bratspies
The protest movement that coalesced this summer around #BlackLivesMatter galvanized a long overdue public conversation about race in the United States. Students across the country are demanding that their professors reexamine their textbooks and revise their course materials to grapple with the ways that structural racism has shaped our various disciplines. Administrative law is no exception to this long overdue trend.
Many key administrative law cases have profound racial subtexts that reading the case alone would not reveal. It was not “students” who objected to corporal punishment in Ingraham v. Wright, it was the Black students who were and remain overwhelmingly more likely to be subjected to this degrading and painful punishment despite not being more likely to misbehave in school. All of the students suspended for “disobedient conduct” in Goss v. Lopez were Black, and the “widespread disturbance” for which they were suspended was actually Black History Week. Left out of Board of Regents v. Roth is the fact that Mr. Roth was not reappointed to Oskhosh University because he spoke out against to the mass suspension of 94 Black students. Reading just the opinions, students would never know how racially fraught these cases are—the Supreme Court omitted the racial context as though it were irrelevant to the “real” legal issues at stake. This choice of ignoring the racial backstory to key cases often masquerades as even-handed legal neutrality. But editing out the lived reality of the parties and the context in which their dispute arose is actually a highly political choice, one that normalizes the perspective of the white, cis-gendered, middle class male as value-free, objective and neutral. My colleague Natalie Gomez-Velez’s contribution to this symposium documents the harm this faux neutrality inflicts on marginalized students.
This insight is not new. Kimberlé Crenshaw has criticized what she labeled the “perspectiveless mode” of legal analysis for decades. Administrative law has been remarkably resistant to this critique. Cases and textbooks follow the Supreme Court’s lead of erasing the fraught racial and social context of key decisions. Students are introduced to administrative law not as the frontline of social struggle, but as a highly technical, arcane field whose purpose is to apply neutral, a priori rules. Class discussions can be limited to how various sets of facts should be interpreted in light of those rules. By this simple tactic of centering the discussion elsewhere, critiques raising systemic injustice can be easily shunted aside as “unlawyerly.” Students bring this mindset with them into practice, which results in a climate in which, as my colleague Julia Hernandez wrote, “raising racial inequities or unfairness in individual cases, even when specific examples exist, is highly discouraged and disfavored.”
Many of us deploy some form of this perspectiveless mode of administrative laws because it is how we were taught, and it feels comfortable and safe. Many of us, especially those who are white, may have had little experience or training discussing race and may be afraid of student reactions. Yet, we must do better. When we obscure how administrative law participates in and perpetuates white supremacy, we are ourselves ratifying that system. So I was delighted when Kati Kovacs launched a conversation about structural racism in administrative law on the administrative law prof listserv, which subsequently morphed into this series of blog posts. Law professors have a moral obligation to recognize the unique burdens the so-called perspectiveless mode of administrative law puts on our students, especially our students of color. We have an equal obligation to teach white students that systemic racism is encoded in the relationship between legal rules and social reality.
To that end, I offer some thoughts on the 1983 Supreme Court decision INS v. Chadha. The Chadha case is discussed in just about every administrative law class to highlight the limits on Congress’s Article I powers. Interpreting the Bicameralism and Presentment Clauses, the Chadha majority concluded that one-house legislative vetoes unconstitutionally violate separation of powers. Justice Powell, who concurred in the result acknowledged that “the breadth of this holding gives one pause” because Congress had included more than 300 legislative vetoes in over 200 federal laws. Writing in dissent, Justice White accused the majority of “striking down in one fell swoop more laws than the court had cumulatively invalidated in its history.” After the Supreme Court handed down its 7-2 ruling, Chadha commented “now, as long as the republic of the United States lives, the law students will all study my case.”
Yet, most casebooks include virtually no information about Jagdish Rai Chadha or about how he found himself in the situation that gave rise to this case. When he appeared before United States courts to defend himself against deportation, there was literally nowhere for him to go because Mr. Chadha was stateless. He had no nationality. A racist, colonial system of citizenship had expelled and disowned him. When professors ignore that reality in favor of bicameralism and presentment they miss an opportunity to interrogate the erasure of issues of race in the administrative law setting. Chadha brings to life Ian Haney Lopez’s assertion that “law not only constructs race, race constructs law.”
Mr. Chadha could be any one of our students—a college educated, ambitious person, with no ties to anything that might make him seem “undesirable” in the eyes of a government. Reading him back into the case creates an opportunity to discuss how seemingly neutral law cloaks the racial politics surrounding articulations of citizenship, a point Ming Hsu Chen makes elegantly in her contribution to this symposium. Including Mr. Chadha’s story better prepares students to see issues of race and justice as the thread linking administrative disputes that are often presented as colorblind and unconnected.
The Chadha opinion begins:
Chadha is an East Indian who was born in Kenya and holds a British passport. He was lawfully admitted to the United States in 1966 on a nonimmigrant student visa. His visa expired on June 30, 1972. On October 11, 1973, the District Director of the Immigration and Naturalization Service ordered Chadha to show cause why he should not be deported for having “remained in the United States for a longer time than permitted.”
This paragraph elides as much as it informs—leaving out the swirling drama of Kenyan independence that forms the backdrop for this case. To students in 2020, the existence of Kenya as a country is a fact that needs no interrogation. They have lived their entire lives in a world where Kenya is an independent country. But that was not Mr. Chadha’s experience. When Mr. Chadha left Nairobi for Ohio, Kenya was a newly-minted member of the United Nations.
The Kenya Mr. Chadha was born into was a settler colony. Its residents were forced to navigate the multilayered racial hierarchies that British colonial rule used to dole out privilege. In Kenya, and elsewhere, British imperialism leveraged power by pitting ethnic, racial and religious groups against each other. My colleague Chaumtoli Huq has written about decolonial pedagogy. Read through this decolonial lens, Chadha adds significantly to the administrative law classroom.
Chadha’s experiences were embedded in the decolonial moment. After years of struggle, Kenya became independent in late 1963, with Jomo Kenyatta as its first president. At that moment of independence, Kenya had to address the Aristotelian question of “who is a citizen?” Reacting to the oppressive racial classifications at the heart of British imperialism, Kenya’s 1963 Constitution granted automatic citizenship to those born in Kenya so long as one parent had also been born in Kenya. That important caveat was aimed squarely at Kenya’s largely Asian mercantile class. Chadha’s family fell into this excluded group.
Like so many others with ancestral ties to the Indian subcontinent, Mr. Chadha’s family had wound up in Kenya because it was a British colony. They were part of the forced migration of intellectual capital that Lisa Patel describes as integral to British settler colonialism. Chadha’s father had been born in South Africa, his mother in India. Thus, even though Mr. Chadha had been born and raised in Nairobi, Kenya did not automatically recognize him as a citizen.
(Many of the details about Mr. Chadha’s family and personal history come from the fabulous book Chadha: The Story of an Epic Constitutional Struggle. The first chapter details Chadha’s backstory)
Instead, Kenya’s Constitution gave Mr. Chadha the opportunity “upon making application before the specified date in such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Kenya.” Over a quarter million people found themselves in this situation—obliged either to leave the country they were born in or to try to apply for Kenyan citizenship and surrender their British passports. Mr. Chadha applied for citizenship.
The citizenship process was lengthy and tangled. Multi-year delays were not uncommon. While his application was still pending, Mr. Chadha was admitted to Ohio Bowling Green State University. Kenyan authorities advised him to travel to the United States on his British passport rather than delay his matriculation. Once Mr. Chadha had done so, however, Kenya washed its hands of him, declaring that by using his British passport he had forfeited his opportunity to obtain Kenyan citizenship. Britain meanwhile rushed to adopt the 1968 Commonwealth Immigrants Act explicitly to prevent Kenyans with ancestral roots in the Indian subcontinent from leaving Kenya for the British Isles. By the time Mr. Chadha had completed his studies, the British Parliament had enacted the 1971 Immigration Act, which stripped most of its former colonial subjects of their right of abode in Britain.
Because Mr. Chadha was neither black enough for Kenya, nor white enough for Britain, both disclaimed him. Mr. Chadha was rendered stateless because of his race and ethnicity. This was why Mr. Chadha found himself in a United States Immigration and Naturalization Service office seeking a United States work permit or some other means of regularizing his status. Instead, Chadha was detained, fingerprinted, and designated deportable. At his statutory hearing, the British Consulate and the Kenyan Embassy sent letters stating that neither country was willing to accept him. The Immigration Judge even inquired whether Mr. Chadha could be deported to India—a country he had never set foot in. However, India and Pakistan opposed Britain’s racist Immigration Act and insisted that British passport holders were Britain’s responsibility. No nation was willing to claim Mr. Chadha.
Mr. Chadha was not a Kenyan citizen because of Kenya’s highly political choices; he was not a British citizen because of the United Kingdom’s different set of highly political choices—there was nothing neutral or inherent about the situation. Knowing this backstory, my students frequently express strong feelings about the legal choices Kenya and the United Kingdom made. Mr. Chadha’s experience forces them to grapple with the relevant laws and regulations as a series of intentional racialized policy choices, rather than merely viewing them as neutral a priori rules to be accepted and applied. Once made, this realization is difficult to unsee. With their “perspectiveless” bubble burst, students see how administrative laws and regulations can provide a veneer of neutrality to many other racialized and discriminatory choices. Of course, many students already bring this perspective with them into administrative law, especially students of color with first-hand experience of how neutrality can cloak discrimination. Chadha legitimizes their perspective as relevant to the ordinary discourse of an administrative law class, thereby opening space for their voices to be heard and considered. Chadha also forces their white compatriots (including me) to confront some uncomfortable truths about their own white privilege.
Students use this experience to explore the racial subtexts throughout administrative law more thoroughly, which creates a natural opportunity to consider alternative choices and structures. Having seen Mr. Chadha’s citizenship constructed and deconstructed before their eyes, students approach the DACA cases, Trump v. Hawaii, and so many other administrative law cases with new appreciation for the artificiality of absolute regulatory lines. Moreover, by fostering student appreciation for the racialized nature of citizenship, the magnitude of deportation’s consequences, and the unequal burdens of whose citizenship needs proving, Chadha can lay the groundwork for a richer discussion of the litigation over the proposed inclusion of a citizenship question in the 2020 census case. Without appreciating the racialized context, and the overtly racist intentions behind the question, it is more difficult for students to understand the Supreme Court’s decision.
The fact that Mr. Chadha was lawfully admitted to the United States in 1966 on a nonimmigrant student visa provides another opportunity to dig deeper into the intersection between administrative law, politics, and racial injustice. On July 7, ICE announced that all students on nonimmigrant student visas must leave the country if their schools did not provide in-person classes. Mr. Chadha’s status as holder of such a visa offers a window to discuss what this new rule would have meant for him and offers a gateway to discussing what it meant for the one million affected students whose lives were thrown into chaos, over half of whom come from China and India. A significant portion of these students faced travel restrictions that would have made it impossible for them to return home, putting them in a situation analogous to Mr. Chadha. Moreover, this new ICE rule (subsequently rescinded in the face of legal challenge) was issued as an “interim final rule,” offering the instructor the opportunity to review the ramifications of agency misuse of exceptions to Section 553 rulemaking to shut off discussion of important social consequences of discretionary agency decisions.
Post-script: In 1984, Chadha became a citizen of the United States. He and his wife settled in in Northern California and raised their children there. As far as I know, they are still living something close to happily ever after. It is important to remind students that there can be happy endings.
Rebecca Bratspies is a professor at CUNY School of Law where she runs the Center for Urban Environmental Reform (CUER). Follow her on Twitter here. Follow CUER on Twitter here.