Administrative Discrimination

Administrative Discrimination
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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.

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