Tearing at the Mask of the Administrative State

Despite claims to the contrary, the core claim of Black Lives Matter is a simple one: All individuals should stand before the state in the same position, and that vision is not currently possible because of the systematic racism enacted by the state.

What Black Lives Matters disrupts, then, is a claim that has been central to the field of administrative law: namely, that the administrative state acts in a neutral manner, and thus, scholars’ primary concern lies in outlining the constitutional, structural, and procedural elements of bureaucratic decision-making.

To accept the premise of Black Lives Matter presents a challenge to the intellectual underpinnings of our field. The administrative state is not neutral; rather, in the words of Dean Spade—who discusses the ways in which the administrative state harms the trans-community—Black Lives Matter claims that administrative systems “are sites of production and implementation of racism, xenophobia, sexism, transphobia, homophobia, and ableism under the guise of neutrality.”

How, if we acknowledge the disruptive claims of Black Lives Matter, do we rebuild administrative law cognizant of its lack of neutrality?

I argue that the field of administrative law needs to engage in “critical re-readings” of its scholarship to test the mask of neutrality often imposed within this subdiscipline. What does it mean to critically re-read administrative law? As the project of re-reading is obviously a broad one, I offer three suggestions.

First, we have to be alert to ways in which different citizens encounter the state. I have previously discussed how key figures, such as Charles Reich, understood how administrative systems could reinforce—not alleviate—the vulnerability and precarity of certain citizens. Reinvigorating scholarship in this area should examine why administrative processes prioritize some social identities while pushing others further to the margins.

Second, just as teaching and scholarship on administrative law has incorporated political science concepts such as rational choice theory or republican theory, administrative law should once again broaden its lens to other subject matters that examine how the administrative state functions. Specifically, political theory related to critical race theory and critical legal studies, the cultural formation of the state, as well as post-colonial political theory, offer new ways to consider the primary subjects of administrative law—including the structural relationship between the three branches of government, the administrative legitimation of the state, and the foundational role of the Administrative Procedure Act.

Finally, administrative law scholarship needs to engage more with what it would mean to create new structures—to actually examine, foster, and create anti-racist designs for administrative institutions.

To that end, I want to offer an example of how these strategies of re-reading could operate in practice. I focus on Hannah v. Larche, a case in which the U.S. Supreme Court addressed the constitutionality of the procedures governing administrative investigations conducted by the U.S. Commission on Civil Rights, which was established by the Civil Rights Act of 1957.

The Commission on Civil Rights had investigated “voter deprivations” in Louisiana and sought to rely on the testimony of 67 African American witnesses whose identities were not disclosed in an administrative hearing. White voting registrars claimed that these proceedings violated the Due Process Clause of the Fifth Amendment because the witnesses were not named and therefore could not be cross-examined. In administrative law, Hannah is typically cited for its ultimate holding: Investigations by administrative entities are not subject to the due process requirements imposed by the Fifth Amendment.

Hannah, however, is a case that speaks to how we might undertake a critical re-reading in administrative law. First, Hannah is built on what has proven to be a recurrent issue in administrative law: the vulnerability and precarity associated with the voting rights of African American citizens, and the likelihood that the right to vote might often be undermined by the ways in which that vote is administered.

Second, Hannah begs to be understood in a theoretical light. In many ways, Hannah speaks to the increasing importance of discursive theory in administrative law. Discursive theory, or discourse theory, examines how communications create and affect social and political relationships of power.

Hannah grapples with the relationship between discourse and action in administration: the Commission’s action to protect the African American witnesses by allowing them to shield their identities; the voting registrars’ concern that their testimony would harm them “by subjecting them to public opprobrium and scorn”; the majority’s determination that the discourse of investigation is different than the discourse of adjudication; and finally, Justice William Douglas’s dissent, concluding that due process was violated because the Commission’s procedures permitting anonymity would foster bad speech—that is, defamatory, degrading, or incriminating speech against those whom the Commission investigated.

And this is just one reading of Hannah! Indeed, the relative obscurity of Hannah—say, for instance, compared to its later sibling, Goldberg v. Kelly—speaks to the ways in which administrative law has settled on a canon of cases that may not usefully speak to the challenges that social movements such as Black Lives Matter pose.

Finally, Hannah helps to begin asking one of the most fundamental questions that the Black Lives Matter movement poses: Can there be institutional design that is anti-racist in nature?

And, here, I end on a relatively hopeful note. Hannah should be studied because it offers an example of an administrative entity that was formed to challenge systematic electoral theft imposed by segregation. The Commission on Civil Rights is an administrative entity that has at its core an anti-racist agenda. Now, there are caveats aplenty. The Commission’s power as an entity has ebbed and flowed; its enacting authority—the Civil Rights Act of 1957—is a notoriously weak statute; and its circumscribed power of investigation is narrow.

But by recognizing and studying its design features, we, as scholars, teachers, and practitioners in administrative law, can extend—to use the words of Blake Emerson—a bureaucracy of freedom.

Kali Murray is a professor of law at Marquette University Law School.