Three by Tani on the Administrative State

My co-blogger Karen M. Tani, University of California, Berkeley, has been productive.  Here’s aforthcoming article, a just published article, and one from her backlist:

Administrative Equal Protection: Federalism, the Fourteenth Amendment, and the Rights of the Poor, Cornell Law Review 100 (2015).

This Article intervenes in a burgeoning literature on “administrative constitutionalism,” the phenomenon of federal agencies — rather than courts — assuming significant responsibility for elaborating the meaning of the U.S. Constitution. Drawing on original historical research, I document and analyze what I call “administrative equal protection”: interpretations of the Fourteenth Amendment’s Equal Protection Clause in a key federal agency at a time when the Clause’s meaning was fiercely contested. These interpretations are particularly important because of their interplay with cooperative federalism — specifically, with states’ ability to exercise their traditional police power after accepting federal money.

The Article’s argument is based on a story of change over time. In the late 1930s, when federal courts appeared reluctant to vindicate equal protection claims, the federal Social Security Board (later to become part of the Department of Health, Education and Welfare) took a more active role via its administration of federal grants for state-run public welfare programs. Through the 1940s and 1950s, agency lawyers developed and applied a nondeferential rationality model of equal protection to assess state welfare rules. When paired with the agency’s control over generous federal subsidies, this interpretation had tangible consequences: administrators challenged some of the era’s most restrictive state welfare laws and, in the process, spread the notion that poor Americans had constitutional rights, including under the Fourteenth Amendment. In the mid 1960s, as the agency became embroiled in battles over school desegregation, administrators deftly recharacterized their constitutional interpretation as a statutory one. They saw their constitutional arguments take on new life, however, as welfare rights advocates (including former agency personnel) wielded them in court. Both developments are visible in the landmark case King v. Smith (1968). There the Supreme Court affirmed the poor claimants’ victory in the court below, but rejected the lower court’s equal protection holding in favor of one grounded in the agency’s novel statutory interpretation. Administrative equal protection thus continued to operate as a meaningful constraint on state action — and in fact helped remake the administration of American poor relief in the late twentieth century — but remained hidden from view.

In addition to giving content and direction to the study of administrative constitutionalism, this history enriches legal scholarship in three ways: (1) it provides context for the “new federalism” revolution of the last decades of the twentieth century; (2) it opens up new questions about today’s “uncooperative federalism”; and (3) it helps explain the penurious protections that today’s equal protection jurisprudence offers the poor.

States' Rights, Welfare Rights, and the 'Indian Problem': Negotiating Citizenship and Sovereignty, 1935-1954, Law and History Review 33 (2015)

Starting in the 1940s, American Indians living on reservations in Arizona and New Mexico used the Social Security Act of 1935 to assert unprecedented claims within the American federal system: as U.S. and state citizens, they claimed federally subsidized state welfare payments, but as members of sovereign nations, they denied states the jurisdiction that historically accompanied such beneficence. This article documents their campaign, and the fierce resistance it provoked, by tracing two legal episodes. In 1948, through savvy use of both agencies and courts, and with aid from former government lawyer Felix Cohen, reservation Indians won welfare benefits and avoided accompanying demands for state jurisdiction; the states, in turn, extracted a price -- higher subsidies -- from the federal government. Arizona officials re-opened the dispute in 1951, by crafting a new welfare program that excluded reservation Indians and suing the federal government for refusing to support it. The 1954 dismissal of the case was a victory for Indians, but also lent urgency to efforts to terminate their anomalous status. Together these episodes illustrate the disruptive citizenship claims that became possible in the wake of the New Deal and World War Two, as well as the increasingly tense federal-state negotiations that followed.

Flemming v. Nestor: Anticommunism, the Welfare State, and the Making of “New Property," Law and History Review 26 (2008)

This essay uses the 1960 Supreme Court case Flemming v. Nestor to explore the relationship between Cold War anticommunism, America’s burgeoning welfare state, and Charles Reich’s influential interpretation of constitutional due process. That interpretation, set forth in Reich’s seminal article “The New Property” (1964), is often remembered for its connection to the War on Poverty, the modern welfare rights movement, and the spectacular rise and fall of constitutional protections for the poor between the late 1960s and mid-1970s. This essay reminds readers of the article’s grounding in an earlier era and a broader set of concerns. Reich’s personal glimpses of anticommunist persecution showed him how the growth of the state — even its most benign-seeming arms — could create opportunities for the enforcement of political and ideological conformity. Flemming v. Nestor encapsulated Reich’s fears: After years of paying into Social Security, longtime U.S. resident Fedya Nestor was deported to Bulgaria and his benefits revoked, on account of his dabblings with the Communist Party (or more likely, the more serious involvement of his U.S. citizen wife and stepdaughter). In what Reich later described as “the most important of all judicial decisions concerning government largess,” the Supreme Court held that Nestor had no vested property interest in the benefits he had supposedly “earned,” and hence no valid claim under the Due Process Clause. A decade later, Flemming v. Nestor remained good law, but Reich and his followers had succeeded in convincing federal judges to adopt a different view: one that recognized the coercive potential within acts of government beneficence and that expanded the ambit of constitutional due process.