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Sending the Bureaucracy to War

70 Pages Posted: 10 Jan 2007  

David T. Zaring

University of Pennsylvania - Legal Studies Department

Elena A. Baylis

University of Pittsburgh - School of Law

Abstract

Administrative law has been transformed after 9/11, much to its detriment. Since then, the government has mobilized almost every part of the civil bureaucracy to fight terrorism, including agencies that have no obvious expertise in that task. The vast majority of these bureaucratic initiatives suffer from predictable, persistent, and probably intractable problems - problems that contemporary legal scholars tend to ignore, even though they are central to the work of the writers who created and framed the discipline of administrative law.

We analyze these problems through a survey of four administrative initiatives that exemplify the project of sending bureaucrats to war. The initiatives - two involving terrorism financing, one involving driver licensing, and one involving the adjudication of asylum claims - grow out of the two statutes perhaps most associated with the war on terrorism, the USA PATRIOT Act of 2001 and the REAL ID Act of 2005. In each of our case studies, the civil administrative schemes used to fight terrorism suffer from the incongruity of fitting civil rules into an anti-civil project, the difficulties of delegating wide discretion without adequate supervision, and the problem of using inexpert civil regulators to serve complex law enforcement ends. We conclude that anti-terrorism should rarely be the principal justification for a new administrative initiative, but offer some recommendations as to when it might make sense to re-purpose civil officials as anti-terrorism fighters.

Keywords: national security, terrorism, war on terror, administrative law, administrative agencies, USA PATRIOT Act, REAL ID Act, sanctions, banking, IEEPA, OFAC, Treasury, Homeland Security, immigration, asylum, DMV, drivers license, FinCEN, money laundering

JEL Classification: G28, H11, H56, H77

Suggested Citation

Zaring, David T. and Baylis, Elena A., Sending the Bureaucracy to War. Iowa Law Review, Vol. 92, 2007; Washington & Lee Legal Studies Paper No. 2007-5. Available at SSRN: https://ssrn.com/abstract=956341

David T. Zaring (Contact Author)

University of Pennsylvania - Legal Studies Department ( email )

3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States

Elena A. Baylis

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

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