Administrative Subordination

Abstract

Much of the work academic scholarship on immigration enforcement and environmental justice assumes that agencies negatively impact vulnera-ble and marginalized people as a result of individualized bias or arbitrari-ness in administration. This Article argues that, beyond idiosyncrasies or flaws in administrators themselves, the poor impact of administration on minorities emanates from institutional systems. In doing so, this Article in-troduces a framework of institutional oppression into the study of admin-istration that illustrates how agencies subordinate minority interests to the ends of administrative competence and self-preservation.

A healthy federal bureaucracy is sustained by administrative efforts to reduce institutional burdens, improve efficiency, conserve resources, and preserve the structures underlying the agency’s power to regulate. In addi-tion, a conventional justification for the existence of agencies is that they act on behalf of the public interest, and public interest theories of regulation prize criteria such as efficiency. Administrative actors, therefore, are motivat-ed to pursue these values in order to maintain the administrative state.

However, as this Article shows, agencies harm marginalized communi-ties in pursuit of these institutional virtues. Put simply, agencies mistreat vulnerable people by acting as intended. Essentially, agencies that are oper-ating as expected perpetuate systematic bias. Ironically, by prioritizing public interest values (such as efficiency), agencies may, in fact, cause harm. Argu-ably, this renders agencies less efficient to the extent efficiency requires not only speed and cost savings, but also good results.

For example, immigration officials at the Department of Homeland Se-curity (DHS) use arrest records to decide whom to deport, even if the target-ed noncitizens were never convicted of a crime, because arrest records are in-expensive and accessible proxies for immigration data. The Federal Emer-gency Management Agency (FEMA) failed to evacuate tens of thousands of poor people of color in the wake of Hurricane Katrina both as a result of the systematic management of an institutional history of limited resources and due to FEMA’s post 9/11 placement as a subcomponent of DHS, whose focus on national security has overwhelmed FEMA’s core mandate. The Bureau of Land Management approves gas and oil leases in rural towns quickly, even though the resulting rapid labor expansion reduces the safety of Native women, because focusing on rural communities for energy project expansion allows the agency to streamline its environmental review process.

This Article’s prescription is for institutional redesign. First, from the top down, filtered through legislation, Congress could utilize small-scale, targeted appropriations and pointed procedural interventions to influence how agencies exercise discretion. Second, from the bottom up, the President or agencies themselves could instigate efforts to use more accurate information and more meaningful process. Third, a focus on reviving a government of small, discrete agencies could shape and constrain administrative discretion in ways that encourage agencies to rebalance their priorities in the implementation of law.