Violence in the Administrative State

68 Pages Posted: 27 Aug 2023 Last revised: 3 Oct 2023

Date Written: August 22, 2023

Abstract

Drawing on an original, interview-based case study of an immigration enforcement agency and a review of six decades of social science literature, this Article offers a theory of physical violence in the administrative state that challenges foundational assumptions about administrative law. One-fifth of federal employees work for administrative agencies that police, fight wars, enforce immigration law, or incarcerate people – in other words, agencies that use force to execute the laws. These agencies are saturated with administrative law that obligates front-line administrators to confer due process, give notice, and behave non-arbitrarily. Yet this law often fails to constrain administrators, with unauthorized violence the result.

Conventional administrative law fails in these agencies because it has developed out of a model of the administrative state to which they do not conform. Most administrative law is designed for bureaucracy, whose hallmark is rational information processing using standardized rules and procedures. But the lower levels of these agencies belong to the domain of violence. They empower administrators to use physical violence in response to exigent circumstances – a different role, with different norms and decision-making techniques. Ordinarily designed to safeguard core rule of law values, when bureaucratic administrative law is applied to agencies in the domain of violence, it often masks, and at worst accelerates, unauthorized violence.

For administrative law to potentially address unauthorized violence, it would have to override individuals’ responses and alter agency culture, requiring it to take different forms and pursue different goals than bureaucratic administrative law usually does. Recognizing the domain of violence has practical and conceptual payoffs. It can help us understand how and whether law can check violence in the administrative state. And it opens up a universe of questions about the exceptional legal norms applied to agencies in this domain.

Keywords: administrative law, immigration law, immigration enforcement, prisons, policing, national security law, military law, legal theory, rule of law, violence, social theory, civil rights

Suggested Citation

Chertoff, Emily, Violence in the Administrative State (August 22, 2023). California Law Review, Forthcoming, Columbia Public Law Research Paper No. 4548867, Available at SSRN: https://ssrn.com/abstract=4548867

Emily Chertoff (Contact Author)

Columbia Law School

435 W. 116 St.
#510A
New York, NY 10027
United States

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