Volume 66, Number 8 – May 2017

Articles

On Dollars and Deference: Agencies, Spending, and Economic Rights
Mila Sohoni
PDF

Agencies can change society not just by prescribing conduct, but also by spending money. The Obama administration gave us two powerful examples of this phenomenon. To secure widespread access to affordable health insurance and affordable higher education, the administration took actions that were not required by statutory text. These entitlements are built upon a scaffolding of aggressive agency statutory interpretations, not upon clear legislative commands.

This Article uses these two examples as case studies for evaluating the institutional competence of the executive branch to underwrite large-scale positive economic entitlements on the basis of ambiguous statutory authority. Such agency-initiated schemes may help improve the economic wellbeing and enhance the economic opportunity of millions of Americans. But, as these case studies reflect, the risks of such agency action are considerable. First, when the executive branch gives money away, Article III standing requirements will weaken the check of judicial review on administrative action. Second, agency creation of schemes for protecting economic entitlements may result in political and even legal entrenchment that could complicate or obstruct future lawmakers’ ability to undo those agency decisions. Third, the initiation of broad-scale government spending programs entails society-wide redistributive trade-offs that neither individual agencies, nor the executive branch as a whole, can properly make. In sum, this form of executive-branch action may advance important interests—interests in health, education, and economic equality and opportunity. But it may also corrode values that are at least equally important—most notably, the power of Congress to control the current and future financial obligations of the United States.

 

Bureaucracy As the Border: Administrative Law and the Citizen Family
Kristin A. Collins
PDF

This contribution to the symposium on administrative law and practices of inclusion and exclusion examines the complex role of administrators in the development of family-based citizenship and immigration laws. Official decisions regarding the entry of noncitizens into the United States are often characterized as occurring outside of the normal constitutional and administrative rules that regulate government action. There is some truth to that description. But the historical sources examined in this Article demonstrate that in at least one important respect, citizenship and immigration have long been similar to other fields of law that are primarily implemented by agencies: officials operating at various levels within the administrative hierarchy have played a profound role in the cultivation of the substantive legal principles that those agencies administer. Searching for standards with which to interpret family-based citizenship and immigration statutes, twentieth-century administrators adapted family law principles in the process of developing new rules to govern who counted as a citizen. At times, these administrators operated with a significant degree of autonomy and authority, to a certain extent because of neglect rather than by design. At other times, these administrators shaped the law through legislative and adjudicative processes. These historical sources offer an instructive case study of administrative constitutionalism and of the fluid and dynamic relationship between “internal” and “external” administrative law. They also illuminate the active role of administrators in developing a conception of family that determined, and in many cases continues to determine, the fates of would-be citizens and immigrants.

Overreach and Innovation in Equality Regulation
Olatunde C.A. Johnson
PDF

At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new “inclusive regulation” can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation.

Administering Suspect Classes
Bertrall L. Ross II
PDF

It has been over forty years since the Supreme Court declared a class suspect under the Equal Protection Clause. In that time, the Court has denied suspect-class status—and the special judicial protections associated with it—to the elderly, the disabled, and the poor, and it has avoided suspect-class determinations when addressing laws that discriminate against members of the LGBTQ community. Administrative agencies, however, have stepped in to provide marginalized groups with some protections through their interpretation of civil rights laws. The Court has shown hostility to those agency interpretations, often in opaque decisions that seem to rest on principles of judicial supremacy as much as substantive constitutional principles.

This Article argues that the Court’s hostility to agencies’ role in this area is misguided. Courts should defer to administrative agencies when they protect suspect classes on the basis of reasonable interpretations of civil rights statutes. The principle of judicial supremacy is not relevant: the Court’s abandonment of suspect classes appears driven by the Justices’ concern that the judiciary is intervening too much into the political process rather than a genuine belief that the groups in question do not qualify for suspect status. Given that this court-centered institutional concern does not apply to agencies, it is entirely appropriate for administrative officials to step in to fill the gap in protecting vulnerable minorities. Further, agencies are better positioned than other institutions to calibrate the protection of groups according to the societal context and the need for intervention.

An Administrative Right To Be Free from Sexual Violence? Title IX Enforcement in Historical and Institutional Perspective
Karen M. Tani
PDF

One of the most controversial administrative actions in recent years is the U.S. Department of Education’s campaign against sexual assault on college campuses. Using its authority under Title IX of the Education Amendments of 1972 (mandating nondiscrimination on the basis of sex in all educational programs and activities receiving federal funds), the Department’s Office for Civil Rights (OCR) has launched an enforcement effort that critics denounce as aggressive, manipulative, and corrosive of individual liberties. Missing from the commentary is a historically informed understanding of why this administrative campaign unfolded as it did. This Article offers crucial context by reminding readers that freedom from sexual violence was once celebrated as a national civil right—upon the enactment of the Violence Against Women Act of 1994—but then lost that status in a 5–4 decision by the U.S. Supreme Court. OCR’s recent campaign reflects a legal and political landscape in which at least some potential victims of sexual violence had come to feel rightfully connected to the institutions of the federal government, and then became righteously outraged by the endurance of such violence in their communities. OCR’s campaign also reflects the unique role of federal administrative agencies in this landscape. Thanks to the power of the purse and the conditions that Congress has attached to funding streams, agencies enjoy a powerful form of jurisdiction over particular spaces and institutions. Attempts to harness this jurisdiction in service of aspirational rights claims should not surprise us; indeed, we should expect such efforts to continue. Building on this insight, the Article concludes with a research agenda for other scholars seeking to understand and evaluate OCR’s handiwork.

Volume 66, Number 8 – May 2017

Articles

On Dollars and Deference: Agencies, Spending, and Economic Rights
Mila Sohoni
PDF

Agencies can change society not just by prescribing conduct, but also by spending money. The Obama administration gave us two powerful examples of this phenomenon. To secure widespread access to affordable health insurance and affordable higher education, the administration took actions that were not required by statutory text. These entitlements are built upon a scaffolding of aggressive agency statutory interpretations, not upon clear legislative commands.

This Article uses these two examples as case studies for evaluating the institutional competence of the executive branch to underwrite large-scale positive economic entitlements on the basis of ambiguous statutory authority. Such agency-initiated schemes may help improve the economic wellbeing and enhance the economic opportunity of millions of Americans. But, as these case studies reflect, the risks of such agency action are considerable. First, when the executive branch gives money away, Article III standing requirements will weaken the check of judicial review on administrative action. Second, agency creation of schemes for protecting economic entitlements may result in political and even legal entrenchment that could complicate or obstruct future lawmakers’ ability to undo those agency decisions. Third, the initiation of broad-scale government spending programs entails society-wide redistributive trade-offs that neither individual agencies, nor the executive branch as a whole, can properly make. In sum, this form of executive-branch action may advance important interests—interests in health, education, and economic equality and opportunity. But it may also corrode values that are at least equally important—most notably, the power of Congress to control the current and future financial obligations of the United States.

 

Bureaucracy As the Border: Administrative Law and the Citizen Family
Kristin A. Collins
PDF

This contribution to the symposium on administrative law and practices of inclusion and exclusion examines the complex role of administrators in the development of family-based citizenship and immigration laws. Official decisions regarding the entry of noncitizens into the United States are often characterized as occurring outside of the normal constitutional and administrative rules that regulate government action. There is some truth to that description. But the historical sources examined in this Article demonstrate that in at least one important respect, citizenship and immigration have long been similar to other fields of law that are primarily implemented by agencies: officials operating at various levels within the administrative hierarchy have played a profound role in the cultivation of the substantive legal principles that those agencies administer. Searching for standards with which to interpret family-based citizenship and immigration statutes, twentieth-century administrators adapted family law principles in the process of developing new rules to govern who counted as a citizen. At times, these administrators operated with a significant degree of autonomy and authority, to a certain extent because of neglect rather than by design. At other times, these administrators shaped the law through legislative and adjudicative processes. These historical sources offer an instructive case study of administrative constitutionalism and of the fluid and dynamic relationship between “internal” and “external” administrative law. They also illuminate the active role of administrators in developing a conception of family that determined, and in many cases continues to determine, the fates of would-be citizens and immigrants.

Overreach and Innovation in Equality Regulation
Olatunde C.A. Johnson
PDF

At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new “inclusive regulation” can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation.

Administering Suspect Classes
Bertrall L. Ross II
PDF

It has been over forty years since the Supreme Court declared a class suspect under the Equal Protection Clause. In that time, the Court has denied suspect-class status—and the special judicial protections associated with it—to the elderly, the disabled, and the poor, and it has avoided suspect-class determinations when addressing laws that discriminate against members of the LGBTQ community. Administrative agencies, however, have stepped in to provide marginalized groups with some protections through their interpretation of civil rights laws. The Court has shown hostility to those agency interpretations, often in opaque decisions that seem to rest on principles of judicial supremacy as much as substantive constitutional principles.

This Article argues that the Court’s hostility to agencies’ role in this area is misguided. Courts should defer to administrative agencies when they protect suspect classes on the basis of reasonable interpretations of civil rights statutes. The principle of judicial supremacy is not relevant: the Court’s abandonment of suspect classes appears driven by the Justices’ concern that the judiciary is intervening too much into the political process rather than a genuine belief that the groups in question do not qualify for suspect status. Given that this court-centered institutional concern does not apply to agencies, it is entirely appropriate for administrative officials to step in to fill the gap in protecting vulnerable minorities. Further, agencies are better positioned than other institutions to calibrate the protection of groups according to the societal context and the need for intervention.

An Administrative Right To Be Free from Sexual Violence? Title IX Enforcement in Historical and Institutional Perspective
Karen M. Tani
PDF

One of the most controversial administrative actions in recent years is the U.S. Department of Education’s campaign against sexual assault on college campuses. Using its authority under Title IX of the Education Amendments of 1972 (mandating nondiscrimination on the basis of sex in all educational programs and activities receiving federal funds), the Department’s Office for Civil Rights (OCR) has launched an enforcement effort that critics denounce as aggressive, manipulative, and corrosive of individual liberties. Missing from the commentary is a historically informed understanding of why this administrative campaign unfolded as it did. This Article offers crucial context by reminding readers that freedom from sexual violence was once celebrated as a national civil right—upon the enactment of the Violence Against Women Act of 1994—but then lost that status in a 5–4 decision by the U.S. Supreme Court. OCR’s recent campaign reflects a legal and political landscape in which at least some potential victims of sexual violence had come to feel rightfully connected to the institutions of the federal government, and then became righteously outraged by the endurance of such violence in their communities. OCR’s campaign also reflects the unique role of federal administrative agencies in this landscape. Thanks to the power of the purse and the conditions that Congress has attached to funding streams, agencies enjoy a powerful form of jurisdiction over particular spaces and institutions. Attempts to harness this jurisdiction in service of aspirational rights claims should not surprise us; indeed, we should expect such efforts to continue. Building on this insight, the Article concludes with a research agenda for other scholars seeking to understand and evaluate OCR’s handiwork.