Beyond Equity: The Counterfactual Administrative State

• Pages: 425-440
• Date: 01 July 2024
• Published date: 01 July 2024
• Author: Joy Milligan

Beyond Equity: The Counterfactual

Administrative State

JOY MILLIGAN*

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425

I. THE HARMS OF JIM CROW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427

II. BLACK AMERICANS AND SOCIAL POLICY . . . . . . . . . . . . . . . . . . . . 429

III. THE CASE OF EDUCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430

A. The Blair Bills. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431

B. Smith-Towner and Successor Bills. . . . . . . . . . . . . . . . . . . . . 432

C. The Harrison-Fletcher Bills . . . . . . . . . . . . . . . . . . . . . . . . . 435

IV. WOULD RACIAL DEMOCRACY HAVE BROUGHT DIFFERENT

RESULTS? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436

V. THE WORLD AS-IT-IS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437

VI. BEYOND EQUITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439

INTRODUCTION

What kind of administrative state would we have, if the United States had been

a true democracy earlier?

In this short essay, I begin to address that question. I argue that in light of the

foregone democratic possibilities, the goal of equity asks too little of the adminis-

trative state.

1

A broader vision directs us beyond equity, toward institutional

reimagination and transformation.

* Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia

School of Law. Many thanks for helpful comments to David Bernstein, Blake Emerson, Chris Havasy,

Rene

´e Landers, Nicholas Parrillo, Cristina Rodrı

´guez, Bertrall Ross, Bijal Shah, Karen Tani, and

participants at the 2024 “Administering a Democratic Political Economy” workshop and the C. Boyden

Gray Center’s Equity in the Administrative State Symposium. I appreciate the dedicated work of the

Georgetown Journal of Law & Public Policy editors in preparing this essay for publication. © 2024, Joy

Milligan.

1. A recent executive order def‌ines equity as “the consistent and systematic treatment of all individuals

in a fair, just, and impartial manner.” Exec. Order No. 14,091, 88 F.R. 10825 (Feb. 16, 2023).

425

The United States did not meet even minimal standards for egalitarian democ-

racy until the late twentieth century, with the passage of the Voting Rights Act.

2

Until then, essentially all governing institutions were designed and implemented

without the legitimate assent of the governed, due to the exclusion of women and

racial minorities. That includes the Constitution and its amendments, particularly

those that set forth the structure of the U.S. government, as well as many of the

“super-statutes” that have indelibly shaped the American past and present.

Among the critical statutes are those that created major arms of the federal gov-

ernment, including Cabinet departments, boards, bureaus, and commissions.

Until at least the 1960s, none of those laws and institutions emerged under actual

democratic conditions.

Even the most formal theories of American law call for those suffering illegal

harms to be returned to the position they would have enjoyed, had the illegality

never occurred.

3

It is impossible to reverse engineer the world as it would have

been had the United States been a full-f‌ledged egalitarian during the twentieth

century, much less throughout earlier centuries. We cannot know, much less cre-

ate, the precise governing institutions or programs that would have been designed

under democratic conditions. Nonetheless, our inability to achieve perfect reme-

diation (or even fully envision it), does not diminish the need to address the dem-

ocratic illegitimacy of the current structures—and to consider how the foregone

alternatives might have reshaped our polity.

Given the unknowable nature of that alternative, democratic world, how can

we address the ongoing harm from living within structures that were undemo-

cratically imposed? Such institutions resist popular change by design, so it is

insuff‌icient to call for any disgruntled groups to simply organize to overhaul

them in the present.

4

Further, those governing institutions have shaped the politi-

cal power and material status of minority groups in the present, directly impeding

their members’ ability to effect change. Stuck as we are within the world of noni-

deal alternatives, we can still engage in the (necessarily imperfect) thought

2. Until women were enfranchised in 1920, a majority of the population could not vote. See U.S.

CONST. amend. XIX. Until people of color were effectively enfranchised in the South by the Voting

Rights Act, major portions of the country were not democratic in fact. See Voting Rights Act of 1965,

Pub. L. 89-110, 79 Stat. 437; STEVEN F. LAWSON, RUNNING FOR FREEDOM: CIVIL RIGHTS AND BLACK

POLITICS IN AMERICA SINCE 1941, at 108–09, 118 (4th ed. 2015).

3. See, e.g., JOHN C. P. GOLDBERG & BENJAMIN C. ZIPURSKY, THE OXFORD INTRODUCTIONS TO U.S.

LAW: TORTS 344–45(2010) (describing the notion of “make whole compensation” as requiring “that the

plaintiff’s compensatory damages should in principle be enough to return the plaintiff to the status quo

ante—the condition she was in prior to the happening of the tort.”).

4. Democratic reforms to governing institutions face major obstacles, including the diff‌iculty of

amending structures created by Constitutional text, the minoritarian obstacles to achieving Congressional

action to overhaul statutes, and the administrative state’s resistance even in the face of constitutional or

statutory change. See, e.g., U.S. CONST. art. V (setting forth rules for constitutional amendment);

STANDING RULES OF THE SENATE, R. XXII, S. Doc. No. 110-9, at 16 (setting forth rules for cloture); Adam

Shinar, Dissenting from Within: Why and How Public Off‌icials Resist the Law, 40 FLA. ST. U. L. REV 601,

625-29 (2013) (describing some of the sources of bureaucratic resistance to legal change). Even

supermajorities have diff‌icult in achieving reform in the face of such obstacles.

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