Immigration Article of the Day: Envisioning a Protective Administrative Law Framework by Bijal Shah
Envisioning a Protective Administrative Law Framework by Bijal Shah, Harv. CR-CL L. Rev. (forthcoming)
Abstract
The administrative state is an instrument of deprivation and intrusion. While civil rights statutes and constitutional law have sought to rectify some of these dangers, the role of administrative law has been undervalued. This Essay initiates the construction of a protective administrative law paradigm. More specifically, it explores the idea that administrative law tools drawn from the Administrative Procedure Act (APA) could be utilized to protect people engaging with or targeted by the administrative agencies, including as directed by the President, in a manner that is complementary to—but distinct from—civil rights and constitutional law models. In doing so, it locates administrative law in conversations about preserving individual interests vis-à-vis the administrative state. Indeed, the APA is a cornerstone of administrative law that offers possibilities for constraining damaging administrative behavior, including violence furthered by nontransparent and arbitrary immigration enforcement policies. More specifically, this Essay explores the use of notice-and-comment rulemaking; arbitrary and capricious review; and APA-based review of administrative detention to protect individuals’ liberty and bodily autonomy. The suggested approaches fit within current doctrine, are useful across presidential administrations, and may also be pertinent to restraining harmful administration outside of the immigration context.
