Sending the Bureaucracy to War

• Author: David Zaring/Elena Baylis
• Position: Assistant Professor/Associate Professor
• Pages: 1361-1428

Assistant Professor, Washington & Lee University School of Law. B.A., Swarthmore College; J.D., Harvard Law School.

Associate Professor, University of Pittsburgh School of Law. B.A., University of Oregon; J.D., Yale Law School. Thanks to Francesca Bignami, Darryl Brown, Montr Carodine, Mariano-Florentino Cullar, Susan Franck, Amanda Frost, Brandon Garrett, Peter Lindseth, Jeffrey Lubbers, Michael Madison, John Parry, Melissa Waters, and participants at workshops at Boston College, the University of Pittsburgh, SEALS, and Washington & Lee University. Thanks also to James Lin, Taylor Menlove, and Jeremy Seeman for research assistance and to the Frances Lewis Law Center for research support.

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I Introduction

The war against terrorism is transforming our bureaucracy, and it is transforming it badly. Since September 11, the government has mobilized not just its national security apparatus, but almost all of the myriad units of the federal civil administrative state to battle against a small and elusive foe.¹Officials like state department of motor vehicles ("DMV") employees and federal banking regulators have no obvious expertise in counterterrorism. Nevertheless, in DMVs, the Treasury Department, and many other unlikely venues, all of the usual indicators of bureaucratic action-rulemakings, adjudications, licensing, and civil enforcement actions-have been put to the new and uneasy service of national security. In this Article, we argue that the vast majority of these civil bureaucratic initiatives in the war against terrorism suffer from predictable, persistent, and probably intractable problems.

Everyone agrees that we should fight terrorism. The question is how we should do it-and who we should use for the job. While the debate over the war on terrorism thus far has focused on questions of civil liberties and executive authority, other fundamental questions have been overlooked. For example, do our civil administrative agencies make effective, efficient foot soldiers in this war? Or, in transforming our bureaucracy to become a fighting unit, are we undermining its ability to serve the vital, if more prosaic, purposes for which it was intended?

A sober reevaluation of the costs and benefits of the approach the government has taken since September 11 is overdue, particularly in light of the all-encompassing nature of the administrative anti-terrorism campaign. Almost every federal department and agency has adopted an anti-terrorism policy or initiative. The most mundane of state and local agencies have been asked to transform themselves into security providers and law enforcers.

Pursuant to the USA PATRIOT Act of 2001 ("PATRIOT Act"),² passed shortly after September 11 and recently reauthorized, financial regulators in the Department of the Treasury have passed rules, engaged in enforcement actions, and taken over American organizations in an effort to disrupt terrorist financing.³ Pursuant to the REAL ID Act of 2005,⁴ immigrationPage 1362 adjudicators have been given broad, barely reviewable discretion to make asylum determinations with an eye to keeping terrorists out of the United States, and state DMVs have been tasked with new responsibilities for limiting access to drivers' licenses.⁵

In this Article, we survey some of the bureaucratic initiatives taken on the authority of these two statutes and identify three characteristic problems with these efforts.⁶ These problems test the capacity of the administrative state, and in doing so, tell us something about how that state works, especially its efficacy in the context of unconventional, new initiatives.

First, we identify the problem of fit, that is, the problem of using civil rules to find and deter terrorists-perhaps the quintessential non-civil actors. Administrative agencies tend to make law in one of two ways: by creating and enforcing rules of general applicability that govern the public at large, such as through a tax collection or drivers' licensing regime, or by extending a benefit in exchange for voluntary cooperation, such as granting licenses to financial institutions in return for voluntary compliance with reporting requirements.⁷ These typical modes of action are ill suited to reach terrorists, who can opt out of regimes that depend on voluntary participation and who comprise a tiny segment of the public as a whole.⁸These problems of scale and coverage make the efforts to detect and deter terrorists very different from customary bureaucratic work. We argue that, as a result, bureaucracy is almost always unfit to do counterterrorism.⁹

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Second, these anti-terrorist measures diminish administrative effectiveness by going to extraordinary lengths to privilege agency discretion, thereby reducing agency accountability and, predictably, resulting in increasingly arbitrary and unreviewable agency action. We call this the problem of overdiscretion. It is a maxim of administrative law that the authority delegated to administrative agencies should be paired with safeguards on the abuse of that authority.¹⁰ Accordingly, administrative agencies have traditionally operated publicly and openly and usually pursuant to a tested and established framework of rules.¹¹ Agency rulemaking is governed by requirements for public notice and comment,¹²while agency adjudication is subject to judicial review or, at a minimum, to supervision by senior executive branch officials.¹³ But the administrative initiatives against terror routinely reduce what have traditionally beenPage 1364 participatory, reviewable rulemaking or adjudicatory processes to singular acts of discretion that are often undertaken in secret and are thus effectively insulated from public view and from judicial, or even supervisory, review. Furthermore, these measures often place this decision-making authority in the hands of mid-level or even street-level bureaucrats, such as office directors in the Department of the Treasury in the case of the terrorist financing programs, or low-level state employees in the case of the drivers' license programs created by the REAL ID Act.¹⁴ The allocation of discretion to bureaucrats who are all but insulated from oversight has, at least in the case of anti-terrorism regulation, become a license for arbitrariness.

Third, anti-terrorism regulation has expanded agency powers to regulate beyond areas of agency expertise. Since September 11, our bureaucracy has folded new industries into its regulatory purview and has adopted new investigative and rulemaking responsibilities-responsibilities that are often difficult to distinguish from criminal law enforcement. Max Weber posited that bureaucracies would develop rational and task-specific areas of expertise.¹⁵ But the new anti-terrorism responsibilities of agencies have ignored this Weberian maxim. Instead, agencies have been tasked with uncharacteristic, non-civil responsibilities and have been told to exercise these responsibilities without supervision. The results have been predictably inexpert.

As a result of the problems of fit, overdiscretion, and inexpertise, agencies asked to fight the war on terror consistently miss their targets. In fact, the fit between bureaucratic methods of regulation and terrorist patterns of behavior is so poor that civil bureaucrats typically do not even try to target terrorists directly. Instead, they target proxy groups in the hopes that somewhere among those proxies, terrorists may be found. The predictable result has been that these initiatives have burdened proxy groups, not terrorists. This proxy problem, as we call it, means that the administrative war on terror overwhelmingly burdens law abiders who willingly participate in civil administrative schemes.¹⁶

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In this Article, we first look at classical and modern theories of the purpose of administrative law and consider what they have to tell us about the administrative war on terror. As a matter of scholarship, we think that the currently ascendant focus on the political choices made by agencies and by those who delegate authority to them overlooks vital questions of competence that occupied scholars like Weber and the mid-century legal process theorists. The conceptualization of administrative law as a political arena fails to provide us with traction on important questions like whether administrative law is an appropriate way to pursue counterterrorism.

Because the competence theorists understood that the justification for administrative action depends on a careful analysis of its prospects for success, we offer a relatively thick description¹⁷ of four characteristic...