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Memo 09.11.2020 16 minutes

Administrative Discrimination

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To fight prejudice, get the bureaucrats out of power.

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Enduring traditional critiques of the administrative state concern its delinkage from—and, ultimately, its hostility to—our republican form of government. Permanent cadres of unelected officials are personally and institutionally incentivized to act unmoored from the ideals and the practices of constitutional limits. The American understanding of justice is equal protection under the law. Today, in the midst of an ongoing regime crisis in which the legitimacy of the American system of government is in dispute, many Americans are rightly worried that the administrative state rejects that understanding. Here, Prof. Hamburger shows how that the problem is written into the administrative state itself: an anti-democratic commitment to unequal protection can be traced historically from its origins to today. —Eds.

What will come of this summer’s storms has yet to be seen. But one unexpected side effect is that more and more Americans are willing to recognize that our administrative regime is pervasively prejudiced and discriminatory. The unsavory character of the administrative state will not come altogether as a surprise to the readers of this website—or of my scholarship—but for many Americans it is nearly a revelation. Though administrative power is shamefully discriminatory, there has long been a refusal even to discuss this; so the possibility now comes as a surprise.

Of course, there have been some genuine revelations—in particular Dan McLaughlin’s recent essay in National Review on “The Confederate Roots of the Administrative State.” McLaughlin points out that when Woodrow Wilson theorized and established the federal administrative state, he drew upon the experience of the Confederate States of America.

The problem, however, is more than historical. As I will show, administrative power is inherently discriminatory. Not merely by genealogical accident, but for structural reasons, this form of governance systematically lends itself to prejudice and discrimination.

Muzzled Research

My own interest of the administrative state began when I became aware of its threat to scientific inquiry and publication. Though I had long been familiar with administrative power from my practice in tax law, I became academically engaged with it only when, about two decades ago, I learned about Institutional Review Boards (IRBs).

To my astonishment, my friends in the sciences and social sciences were being censored. IRBs were preventing access to information, delaying research, and even precluding publication. And already then, some of the scientists were worrying about lost lives.

In order to prevent a relatively small amount of dangerous research on “human subjects,” IRBs impose prior administrative licensing on the full array of such research, regardless of whether it is federally or privately funded. I am not talking about the use of IRBs to review testing of unlicensed drugs and devices under the Federal Drug Administration, but the use of IRBs to license human-subjects research, mainly under the auspices of Health and Human Services.

This prior review inevitably delays and prevents a vast array of much entirely innocent bio-medical research. And because the review candidly focuses on speech in both the research and its publication, it also delays and prevents much bio-medical publication.

The consequences, particularly for minorities, are devastating. Although supposedly imposed by the federal government in response to scientific mistreatment of black individuals, such as at Tuskegee, the very solicitousness of IRBs for minorities stymies research on their distinctive medical problems.

To be sure, it is difficult to show the effect of chilled speech—that which because of government interference is never uttered or published. But it is clear that in barring, discouraging, and even merely delaying research and publication, the IRB system diminishes the formation and sharing of bio-medical knowledge. And this ineluctably leaves a wide wake of misery and death.

The body count is suggested by the Pronovost study of catheter-related bloodstream infections—a study that, although shut down, was published in 2006 with the effect of saving well over 10,000 lives per annum, which means at least 140,000 lives since its publication. (And that is in the United States alone, not counting lives saved elsewhere.) If one very conservatively supposes that the IRB system impedes only a few profoundly life-saving studies each year, the lost lives over the course of even a single decade quickly runs into the hundreds of thousands, even millions.

When one moves from the general population to minorities, one must add to the costs. Consider, for example, the fate of black men in cardiac surgery. The prejudice of doctors may explain some of the disparity, but the administrative obstacles to studying the distinctive medical issues of black men cannot be discounted. Allegedly for their protection, the administrative state impedes research about their needs.

Of course, this is not to say that IRBs are imposed in order to hurt minorities or other Americans; on the contrary, IRBs have always purported to protect the public and especially minorities. But that self-congratulatory story—still espoused by Health and Human Services—cannot mask the host of less hygienic motivations or excuse the devastating results. When government interferes with medical research and its publication—especially when it places administrative burdens on research and publication concerning minorities—the vast costs in human life are entirely predictable and, of course, discriminatory.

Voting Rights and Prejudice

From its very beginnings, the administrative state has been the playground of the knowledge class—the place where they can exclude others from power. And this is no accident.

Twentieth-century legal philosophers tend to define the “rule of law” in terms of the qualities of law, without pausing to consider who makes it, which certainly is a good recipe for justifying administrative rules as a form of law. But of course it matters who makes law—this being why Americans care about voting rights, and why the administrative state takes so much lawmaking out of the hands of elected legislatures. The administrative state was founded in America precisely to displace the voting power of the newly enfranchised masses with the administrative power of the knowledge class.

To recognize the prejudice, consider that equal voting rights and the administrative state are the two most remarkable developments in the federal govern­ment since the Civil War. It therefore is worth pausing to ask about any connection.

Though equality in voting rights has been widely accepted, the resulting democratization of American politics has prompted mis­givings. Worried about the tumultuous character of representative politics, and the tendency of newly enfranchised groups to reject progressive reforms, many Americans have pursued what they consider a more elevated mode of governance.

Woodrow Wilson candidly complained in “The Study of Administration” (1887) that “the reformer is bewildered” by the need to persuade “a voting majority of several million heads.” He worried about the diversity of the nation, which meant that the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes.” Put another way, “the bulk of mankind is rigidly unphilosophical, and nowadays the bulk of mankind votes.”

And “where is this unphilosophi­cal bulk of mankind more multifarious in its composition than in the United States?” Accordingly, “in order to get a footing for new doctrine, one must influence minds cast in every mold of race, minds inheriting every bias of environ­ment, warped by the histories of a score of different nations, warmed or chilled, closed or expanded by almost every climate of the globe.” Rather than attempt to persuade such persons, Wilson urged administrative governance. The people could still have their republic, but much legislative power would be shifted out of an elected body and into the hands of the right sort of people.

These prejudiced beginnings do not mean that the contemporary administrative state is racist. Though it began with overt racism, what is more fundamental is that it has all along involved a transfer of legislative power to the knowledge class—meaning not a class defined in Marxist or other economic terms, but those persons whose identity or sense of self-worth centers on their knowledge.

This is not to say that they have been particularly knowledgeable, but that their sense of affinity with cosmopolitan knowledge, rather than local connectedness, has been the foundation of their influence and identity. Being appreciative of their knowledge, and distrustful of a diverse people, they have gradually moved legislative power out of Congress and into administrative agencies—to be exercised, in more genteel ways, by persons like…themselves.

Put simply, the enfranchised masses have disappointed those who think they know better. Thus, although racial prejudice played a central role in the development of administrative power, it is class prejudice that is essential for understanding the persistence of this mode of control. The ruling class has been partly replaced by the rulemaking class. By substituting rulemaking agencies for elected lawmaking bodies, this class has elevated itself and its vision of an ordered society.

Continuing Discrimination

Even if the administrative state could be cleansed of racial and class prejudice, administrative power would remain inherently discriminatory. The reason is structural. The removal of legislative power from the representatives of a diverse people has implications for minorities—racial and otherwise.

The prob­lem is the relocation of lawmaking power a further step away from the people and into the hands of a relatively homogenized class. Although often exercised with solicitude for minorities, it is a sort of power exercised from above, and those who dominate the administrative state have always been, if not white men, then at least members of the knowledge class.

It is therefore no surprise that administrative power comes with costs for the classes and attachments that are more apt to find expression through representative government. In contrast to the legislative power exercised by elected members of Congress, administrative power comes with little accountability to, or even sympathy for, local, regional, religious, and other distinctive communities. Individually, administrators may be concerned about the full range of Americans. But their power is structured in a way designed to cut off the political demands with which, in a representative system of government, local and other dis­tinctive communities can protect themselves.

Administrative power thus cannot be understood apart from equal voting rights. The gain in popular suffrage has been accompanied by disdain for the choices made through a representative system and a corresponding shift of legis­lative power out of Congress. Although the redistribution of legislative power has gratified the knowledge class, it makes a mockery of the struggle for equal voting rights.

The Klan and the Administrative Control of Speech

When one examines narrower patches of administrative power, the risk of prejudice and discrimination does not abate—as can be illustrated by the administrative control of speech. Many agencies, such as the Department of Education under Title IX, engage in administrative control of speech. Indeed, many agencies—notably, the FCC, the FDA, the FEC, HHS, the IRS, and the SEC—go so far as to impose prior licensing of speech. But the IRS stands out, for it administratively enforces speech restrictions first proposed by the KKK.

Hiram Evans first made his mark in the Invisible Empire by leading a group of Dallas Klansmen in seizing an unfortunate bellhop, taking him down to the river, and burning the letters “KKK” in his forehead with acid. Perhaps on this account, Evans was chosen a year later, in 1922, to serve as Imperial Wizard.

Over the next decade, he led the organization to national fame and influence—in part by aligning it against Catholicism and other theological orthodoxies. Although by 1930s, the KKK was in decline, Evans still espoused its agenda, not least the goal of attacking ecclesiastical speech in politics. Like many other nativists, he saw the Catholic Church as the prototypical danger, but more generally sought to suppress any political speech by churches and related organizations.

Evans therefore proposed that churches should be barred from influencing voters and legislators. Four years later, Congress subjected non-profits to one of these limits (confining speech influencing legislation), and another two decades later, it adopted the other (barring speech on voting).

This is not to say that Evans or the Klan specifically induced Congress to adopt these measures. Rather, the speech limitations were generally part of nativist demands, and the Klan was the most politically influential nativist organization of the period. It is therefore no accident that the pair of speech limits established by §501(c)(3) were first proposed by the Imperial Wizard.

The role of the Klan illustrates the larger peril. Administrative licensing of speakers and speech was one of the leading powers of the Inquisition and the Star Chamber. This sort of prior review is profoundly dangerous, and it is unequivocally barred by the First Amendment. But once the federal government acquired administrative power, it should be no surprise is that this seventeenth-century mode of control was revived.

Nor should it be a surprise that nativists took advantage of it to suppress the political speech of their theological and cultural opponents. A hazardous power invites prejudiced and discriminatory uses of it.

Discrimination against Religious Americans

Indeed, religious discrimination pervades the administrative state. When the law asks religious Americans to violate their beliefs, they seek moderated policies or at least exemptions. But they often have difficulty securing such relief from administrative agencies, for administrative power is slanted against much religion.

The discrimination comes in layers. First, administrative power leaves ordinary Americans, including religious Americans, with no opportunity to vote for or against their administrative lawmakers, thus excluding them from their constitutionally guaranteed freedom of electing the persons who make the laws that bind them. Second, §501(c)(3) tends to exclude religious organizations from fully participating in political speech that might influence voters or legislators.

Although this exclusion does have an equally negative effect on all religious Americans, it has particularly severe consequences for individuals whose relatively traditional or orthodox views lead them to be distinctively dependent on their religious organizations to express their views in politics. Such persons are thus doubly excluded from the political process—both in being unable to vote for their administrative lawmakers and in being unable to engage in full political persuasion through their religious organizations.

Accentuating the dual exclusion from the political process—both voting and persuasion—is the administrative ethos of rationalism and scientism, which tends to be unsympathetic to religion, especially relatively orthodox or traditional religion.

Of course, this is not to say that administrators are necessarily personally prejudiced (though some clearly are). Nor is it to dispute the value of reason and science. But rationalism and scientism are not the same as reason and science, and because of these -isms, administrative bodies have institutional commitments that are distinctively indifferent and even hostile to much religion. Overall, administrative governance tends to be much less responsive to the religious needs of many Americans than elective legislative governance.

The difference between representative and administrative policymaking is painfully clear. When a legislature makes laws, the policies that bear down on religion are made by persons who feel responsive to religious constituents and who are therefore usually open to considering exemptions or generally less severe laws.

In contrast, when policies come from administrative agencies, they are made by persons who are chosen or fired by the executive, not the public, and so are less responsive than legislators to the distinctive needs of a diverse people. They are expected, moreover, to maintain an ethos of scientism and rationality, which—however valuable for some purposes—is indifferent and sometimes even antagonistic to relatively orthodox or traditional religion, let alone the particular needs of local religious communities.

None of this is to say that government should disregard education, science, or any resulting expertise. Agency knowledge can be valuable, especially if shared with elected representatives. But the shift of regulatory power from elected legislatures to administrative agencies cuts many religious Americans out of the political process and subjects them to regulators who are far less sympathetic than their representatives.

Of course, this has been a central feature of administrative power since its inception. When Wilson enumerated the Americans who were not of the “older stocks” and were thus difficult for someone like him to persuade, he began his list with “Irishmen.” And administrative power continues to serve anti-orthodox and especially anti-Catholic prejudices—as evident from the religious animosity expressed in the current Supreme Court case of Fulton v. City of Philadelphia. Religious prejudice and discrimination have no place in American law—except, apparently, if they are administrative.

Little is more dangerous for First Amendment rights than administrative power. Administrative licensing of speakers and speech is how IRBs undermine the health of the very minorities they purport to protect and how the IRS has come to enforce nativist prejudices against ecclesiastical speech. More broadly, administrative power deprives many religious Americans of equality in the lawmaking process; even when administrative policies are facially equal, the very process by which they are made is slanted.

Evading Procedural Rights

The events of this summer have brought heightened attention to the criminal justice system, but there has not been much scrutiny of the degree to which administrative power largely guts the Constitution’s procedural rights, including in criminal matters. It is widely said that 95% of criminal offenses are defined administratively, and that Americans are 10 times as likely to be tried by an administrative tribunal as by a court. These numbers are only rough approximations, but they capture an important truth about the overlap between administrative and criminal law.

One much overlooked aspect of this overlap is that administrative enforcement is often criminal in nature. It is bad enough that administrative proceedings deny defendants many of the Constitution’s guaranteed civil procedures. Even worse, when administrative proceedings are criminal in nature, they deny defendants the Constitution’s criminal procedures.

Administrative tribunals thereby irreparably injure poor Americans and others who are ill-equipped to fight the administrative state. It is well known how occupational licensing administratively stunts the opportunities for poor and minority Americans. In addition, all administrative proceedings that penalize or correct are criminal in nature, and they deny defendants their procedural rights, such as their right to a jury and their right to be presumed innocent until proven guilty beyond a reasonable doubt. Of course, these administrative proceedings deny procedural rights to all Americans, but they are especially burdensome on some, such as the poor.

The Centrality of Prejudice and Discrimination

Many legal ideas, ranging from contract law to the legislative powers of Congress, can be used for good or for ill, but are not in themselves illicit. That cannot, however, be said of administrative power. It is an unlawful power which deprives vast numbers of Americans of their constitutional freedoms, including their freedom to live under laws made by their representatives, their jury rights, and their freedoms of speech and religion. This is a grotesque perversion of constitutional power, and one must therefore ask: cui bono and cui plagalis?

In other words, one must consider how and why such a power has flourished in America. The sad reality is that administrative power developed out of prejudice—as a response to the enfranchisement of those who did not meet Wilsonesque standards of race and gentility—and it continues to serve as a mode of exclusion, which protects a host of legislative decisions from too much popular participation.

Put simply, it was founded on racial and class prejudice, it is still supported by class prejudice. Moreover, by displacing laws made by elected lawmakers, it continues to discriminate against minorities of all sorts. Along the way, it stifles much scientific inquiry and publication with devastating costs, particularly for minorities. It is especially discriminatory against many religious Americans. And it eviscerates the Constitution’s procedural rights, not least in cases criminal in nature.

So, if you are inclined to defund oppression, defund the administrative state. If you want to tear down disgraceful monuments, demolish the prejudiced and discriminatory power that is Woodrow Wilson’s most abysmal legacy. If you are worried about stolen votes, do not merely protest retail impediments to voting, but broadly reject the wholesale removal of legislative power out of the hands of elected legislators. And if you are concerned about the injustice of the criminal justice system, speak up against the loss of juries, due process, and other rights when criminal proceedings get transmuted into administrative proceedings.

Little in America is as historically prejudiced or systematically discriminatory as administrative power. It is a disgrace, and it is time to take it down.

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