Immigration Article of the Day: On Administration by Fiat by Bijal Shah
On Administration by Fiat by Bijal Shah, Michigan L. Rev. (forthcoming)
Abstract
In a new book, Over Ruled, as well as in his jurisprudence, Justice Neil Gorsuch identifies some genuine harms caused by arbitrary administration, particularly in the immigration and national security contexts. These issues are legible not only-and perhaps not even primarily-to conservatives like him, but also important to a more honest and impactful vision of progressive administration. Despite being well-positioned to do so, Justice Gorsuch fails to bridge the partisan divide in order to fully engage with vital issues regarding flawed exercise of administrative discretion. Instead, this Review argues, in Justice Gorsuch and Janie Nitze's eagerness to advocate for a conventional form of anti-administrativism and attendant scorn for the challenges inherent to applying technical expertise, Over Ruled forgoes more compelling ways to investigate and support these concerns. Indeed, the book's emphasis on idiosyncratic examples of the challenges of applying expertise in administration comes at the expense of better exploring genuine weaknesses in our federal government.
This Review explores the extent to which Over Ruled neglects pathways for more nuanced analysis-and in particular, where it ignores the role and perils of judicial pronouncements and presidential control over administrative enforcement. First, the authors ignore the role of judge-made law in the infringement on personal freedoms that they condemn. Indeed, Over Ruled's critiques of one-off instances of regulation implemented sideways are particularly hard to stomach in light of Justice Gorsuch's failure to acknowledge his own contribution to the systemic criminalization and repression of vulnerable communities. Second, the authors' reflexive support for unilateral presidential control over administrative agencies is unlikely to fix the evils of administrative intrusion, such as they are, and constitute a fundamental cause of it today. Third, this Review proposes that-rather than the unitary executive model that the book, as well as Justice Gorsuch in other writing, espouses as a cure-all to the ills of bureaucracy-the administrative state would be better served by enhancing mechanisms of political and democratic accountability that both uphold important values and answer to marginalized people.
