No. 8: Administrative Law

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  1. We Need to Make Administrative Law Interesting and Urgent

As poverty lawyers, immigration lawyers, housing lawyers, prisoner rights lawyers and many others fighting battles for immensely vulnerable populations can attest, administrative regulations and hearings are often the front lines of white supremacy, settler colonialism, heteropatriarchy and ableism in the US. However, Administrative Law is known by law students as a dry class where it is often difficult to connect the doctrine students are struggling to memorize to anything they care about in the real world. It is essential that Administrative Law professors focused on social justice create dynamic classes that attract students and help them learn about forms of power that are mostly hidden in the usual framing of US politics. Though our media focuses on elections as where politics happens, the distribution of life chances for ordinary people is mostly determined in administrative agencies, through obscure processes of proposing and finalizing administrative regulations and through closed door hearings in which people do not have rights to be represented by attorneys. If we want to help a new generation of radical lawyers support marginalized communities and build strategies within transformative movements, we need to build Administrative Law classes that introduce them to how agencies operate and how advocates intervene within them. It is true that these processes can be dry and obscure, which is exactly why law student should commit to understanding them, supporting communities impacted by them, and providing technical support to movement organizers to help engage with them and their impacts.

Some key themes that can be visited throughout the course to help do this include:

  • The question of notice in “notice and comment.” Do people being impacted by proposed regulations really become aware of them through the Federal Register or state equivalents? Industry and wealthy interests have paid staffers working to influence regulation, but poor people and scapegoated or hated populations are unlikely to be aware of regulations in development until they actually experience them at the moment of arrest, eviction, reduced nutrition in prison meals, diagnosis of illness from pollution, or the like. Students can be engaged about the question of what would fair and equitable notice look like? How could marginalized and stigmatized people have a say in the development of regulations that affect them? What could agencies be required to do to ensure that?
  • Are administrative hearings impartial? Are benefits recipients likely to interpret them that way, or does it seem like the ALJ works for the same organization as the lawyer trying to cut off the benefits? Studies have shown that typical welfare benefits hearings are only a few minutes long. Most recipients are not represented by lawyers. Do the ways that hearings currently work constitute Due Process? What would Due Process look like, especially for highly vulnerable populations like people who do not speak English, people with psychiatric or cognitive disabilities, recent immigrants? This can be explored more deeply by looking at the forms people receive in the mail when benefits are being cut off, procedures for requesting hearings, and other hurdles for participation. It can also be useful to compare levels of “customer service” between various agencies, for example, the difference between the way the Social Security Administration communicates with benefits recipients and the way that local welfare authorities do, and how that relates to societal ideas of deservingness.
  • The administrative state is based on the idea that the people making decisions, rather than being elected, are appointed because they are experts. According to this approach, doctors should be working at the department of health, scientists at the EPA, etc. It can be useful to cultivate a conversation about what we think constitutes “expertise” and to bring in critical perspectives. This can include discussions of scientific racism and sexism and the long histories of debunking of scientific “facts” that actually promote racist, sexist and colonial norms and beliefs. How do we determine what constitutes legitimate knowledge about such contested subjects as those dealt with by administrative agencies? What critical frameworks can we use to think about how knowledge has been produced and adopted by institutions that govern?
  • The commonly circulated idea that right wing people are “anti-regulation” and left-wing people are “pro-regulation” is untrue. Students come to class with this idea, and it is useful throughout the class to help them shed it so they get an understanding that people from any political perspective might find themselves sometimes arguing for reduced regulation and sometimes for increased regulation. Right-wing advocates notoriously oppose environmental regulation and gun regulation, but advocate for increased regulation of immigrants and low-income welfare recipients of color. Left-wing advocates may find ourselves arguing for reduced regulation of migration and against surveillance schemes, but for increased regulation of fossil fuels. When students let go of the simplistic narrative, engagement with the materials changes because they might imagine themselves on either side of various advocacy scenarios with administrative agencies.
  • What happens to administrative agencies when the executive regime (President, Governor, Mayor) changes? It can be useful to surface controversies that have emerged when regime changes have caused an about-face on a particular issue. These moments call into question the purportedly neutral, scientifically-based rationality of administrative governance. Digging into how administration changes impact currently proposed rules, the development of new proposed rules, agency staffing, exercise of discretion by agency personnel and more can help students think practically about advocacy.
  1. Ground the Course in Critical Race Theory

Administrative Law can and should be grounded in Critical Race Theory.  Introduce what Critical Race Theory is and how it helps us think about law from the perspective of people of color rather than from the perspective of drafters and enforcers of a white-dominated legal system. I use Gabriel Chin’s 2002 article Regulating Race: Asian Exclusion and the Administrative State, 37 Harv. C.R-C.L. L. Rev. 1, as a way to initiate this inquiry for Administrative Law. The article helps students begin critically questioning whether Administrative Law is neutral, or whether it emerged out of a set of racial projects. Chin argues that rather than understanding Administrative Law as emerging from the New Deal, we should look at how key doctrines emerged from the Asian exclusion. He demonstrates how key Asian exclusion cases shaped the law and have a continuing impact that is not acknowledged. I begin the semester with this reading.

Other materials that could be used to introduce critical perspectives on the course and that center analysis of racialized structures are:

  1. Open a Critical Dialogue about Administrative Power Itself

The first chapter, entitled “Nature and Space,” in James C. Scott’s book, Seeing Like A State: How Certain Schemes to Improve the Human Condition Have Failed (1998) is a useful tool for helping students take a step back and notice the historical development of administrative power itself. Scott traces the rise of administrative monarchies and helps readers think about how the power to tax, conscript and police populations emerged as governments centralized their capacities to track individuals, property and trade. The chapter examines the destruction of common land schemes and forced replacement by fee simple and the ways that governments mandated standard weights and measures to increase revenue from taxation. The examples are interesting to follow, offering a critical history of arrangements that are generally taken for granted. This creates an opening for an ongoing dialogue about imagining alternative forms of governance altogether, and questioning how various things become governable.

  1. Teach Sections of the Casebook that Are Most Relevant to Social Justice Lawyers

Certain topics in Administrative Law are particularly relevant to social justice lawyers’ practices. These include, but are not limited to, Freedom of Information Act requests, processes of proposing and finalizing regulations, administrative hearings, administrative searches, due process, and non-legislative rules. Whatever you choose to teach, choose it because you can see the connection between that part of the doctrine and work your students might do for justice. Choose what you can convincingly show them is urgent.

  1. Bring Compelling Guest Speakers Currently in Practice

Help students connect the course to urgent work in the field by bringing compelling speakers.  At the very least, bring in a public benefits attorney and an immigration lawyer. It can also be interesting to bring in a lawyer who, as part of her work, watches the Federal Register closely on behalf of some movement or impacted community and coordinates responses to proposed regulations. It can also be great to bring in someone who works closely with tenant organizers and anti-gentrification groups, bringing legal expertise in housing, zoning and rent regulation laws to that organizing work. Have a law librarian visit to give a tutorial on the Federal Register, the Code of Federal Regulations and state equivalents, and the key tools lawyers use for research when doing administrative advocacy. You could also bring in lawyers who work on open government laws and rules generally, or on specific issues like policing.

  1. Rather Than Evaluating Based on One Exam, Create Engaging Assignments

Administrative Law is an ideal course to introduce assignments relevant to practice that help students get their hands dirty in the Federal Register or state equivalent, and build skills for thinking critically about the work of administrative agencies and their histories. Having their grade made of multiple elements allows them to be valued for a broader set of skills and build skills more relevant to practice. Here is the approach I have used:

a. 40% of Grade, Comment on a Proposed Regulation

In this assignment, either in pairs or alone, students create a five-page comment on any current proposed regulation with an open comment period either at the state or federal level.  Students should be asked to include a one-paragraph cover sheet summarizing what they are commenting on. Grade the papers based on writing, research, and persuasiveness.  Students can write as themselves or pretend to represent an agency or organization advocating for a constituency. Students can rely on the existing advocacy materials of such organizations. They need not create new scientific findings, only marshal persuasive arguments regarding what they want the agency to do. An alternative writing assignment to commenting on a proposed regulation could be creating a FOIA or other public records request.

b. 30% of Grade, 20-minute Group Presentation about the Critical History of an Agency

In small groups, students are assigned (or you can create a way for them to choose among a menu) an agency and a mini-syllabus of materials critically examining that agency. The group studies the materials, examines the agency’s website, meets with the professor to demonstrate engagement with the materials in a conversation, adds whatever additional research they desire, and creates a compelling presentation of some kind to their fellow students during the final weeks of class about their agency. Many of my students end up doing a typical PowerPoint presentation, but some have pursued more creative options. One group exploring Customs and Border Protection created a play about how a jar of honey would enter the US. One group created a video about what happens in unemployment hearings. Mini-syllabi are below.

Alternatively, it could be interesting to create a group research project assignment with each group assigned a particular current controversy, such as the Trump Clean Water Act controversies, or controversies around regulating medical or recreational marijuana in states where that has recently become legal.

c. 30% of the Grade, Final Exam

Choose an exam topic that explores a social justice issues and includes rulemaking and adjudication. Unemployment benefits, welfare sanctions, changing DMV regulations regarding gender markers, pollution in a low-income community, a city clearing an Occupy encampment from the grounds of a community college—there are limitless options.

Mini Syllabi for Agency Group Projects

These syllabi are just the ones I have used. The possibilities are endless to explore other agencies or other readings or controversies.

Federal Bureau of Investigation Group

State Department of Corrections or Federal Bureau of Prisons Group

Child Protective Services Group

Immigration and Customs Enforcement Group

Social Security Administration Group

  • Pamela Herd, Reforming a Breadwinner Welfare State: Gender, Race, Class and Social Security Reform, 83(4) Social Forces 1365 (2005).
  • Joe Soss, Making Clients and Citizens: Welfare Policy as a Source of Status, Belief, and Action, in Deserving and Entitled: Social Constructions and Public Policy 291-328 (Anne L. Schneider & Helen M. Ingram eds., 2005).
  • Alice Kessler-Harris, Questions of Equity, in In Pursuit of Equity: Women, Men and the Quest for Economic Citizenship in 20th Century America 117-169 (2003).
  • Robert C. Lieberman, Race, Class and the Organization of Social Police: The Social Security Act, in Shifting the Color Line: Race and the American Welfare State 23-117 (2001).
  • Kilolo Kijakazi, Low Wage Earners: Options for Improving Their Retirement Income, in The Future of Social Insurance: Incremental Action or Fundamental Reform? (Peter Edelman, Dallas Salisbury & Pamela Larson eds., 2002).

Local Welfare Authority Group

  • Rose Ernst, Linda Nguyen & Kamilah C. Taylor, Citizen Control: Race at the Welfare Office, 94(5) Social Science Quarterly 1283 (2013).
  • Laura Katz Olson, The Launching of Medicaid: 1965-1980, in The Politics of Medicaid 20-103 (2010).
  • Joe Soss, Making Clients and Citizens: Welfare Policy as a Source of Status, Belief, and Action, in Deserving and Entitled: Social Constructions and Public Policy 291-328 (Anne L. Schneider & Helen M. Ingram eds., 2005).
  • Frances Fox Piven & Richard Cloward, Regulating the Poor: The Functions of Public Welfare, Chapters 1, 8 & 10 (2d. ed. 1993).
  • Kenneth J. Neubeck & Noel A. Cazenave, Conceptualizing Welfare Racism, in Welfare Racism: Playing the Race Card Against America’s Poor 15-38 (2001).

Bureau of Indian Affairs Group

  • Robert McCarthy, Bureau of Indian Affairs and the Federal Trust Obligation to American Indians, 19 BYU J. Pub. L. 1 (2004).
  • Robert B. Porter, The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship upon Indigenous Peoples, 15 Harv. BlackLetter L.J. 107 (1999).
  • Charles F. Wilkinson, Blood Struggle: The Rise of Modern Indian Nations, Introduction and Chapter 1, “Indian Country: August 1953,” 3-26 (2005).
  • In addition to these readings or other background readings, include recent or current controversies. A good source for following current indigenous resistance is Warrior Publications’ blog, which is maintained by Gord Hill who is also the author of “The 500 Years of Resistance Comic Book” which could also be assigned on this list. Gord Hill, The 500 Years of Resistance Comic Book (2010). I find most students have little or no awareness of indigenous resistance, or any context besides elementary school settler narratives, so this comic book can be a useful primer.

Environmental Protection Agency Group

In the years when I have included an EPA group, I focused materials on the work of one of my colleagues as a way of helping bridge students interested in this area to her work and the courses she was offering.

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