Equity and Administration: A Symposium

• Pages: 373-376
• Date: 01 July 2024
• Published date: 01 July 2024
• Author: Jace Lington,Adam J. White
• Subject Matter: Derecho Público y Administrativo

INTRODUCTION

Equity and Administration: A Symposium

JACE LINGTON* AND AND ADAM J. WHITE**

23 APRIL 2024

ABSTRACT

Amid pivotal debates about the administrative state’s powers and procedures,

another group of debates has arisen around the substance of administrative

power. Bruising election cycles, charges of foreign conspiracies, a worldwide

pandemic, and heightened social tensions have raised fundamental questions:

Which rights should governments protect? Who should benef‌it from government

programs and why?

President Joe Biden offered one answer to those questions on his f‌irst day in

off‌ice.

1

His administration has been working to “embed equity into all aspects of

Federal decision-making.”

2

One preamble to an equity-related executive order

asserted that action is necessary to address “systemic racism in our Nation’s poli-

cies and programs” so that the government “can support and empower all

Americans.”

3

The policy attempts to balance certain scales by identifying and

benef‌iting groups of people who have faced past discrimination.

And this, in turn, has raised concerns about the executive branch unilaterally

ensconcing one particular notion of equity into the apparatus of the administrative

state. Expert administration is one of the main pillars allegedly upholding the le-

gitimacy of the modern administrative state.

4

Public-spirited, non-ideological

civil servants with years of extensive training in specialized f‌ields were to have

broad discretion to set policy for the nation within their f‌ields of expertise. Major

normative attempts to redirect the efforts of those civil servants may create ten-

sion with the policy recommendations they might otherwise make. Such

* Research Director, Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the

Administrative State; Portfolio Manager, The America Fund. © 2024, Jace Lington and Adam J. White.

** Executive Director, Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the

Administrative State; Senior Fellow, American Enterprise Institute.

1. See, e.g., Executive Order 13985, Advancing Racial Equity and Support for Underserved

Communities Through the Federal Government, 86 Fed. Reg. 7009 (Jan. 20, 2021).

2. See, Executive Order 14091, Further Advancing Racial Equity and Support for Underserved

Communities Through the Federal Government, 88 Fed. Reg. 10825 (Feb. 22, 2023).

3. Ibid.

4. See, e.g., Gillian E. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The

Administrative State Under Siege, 131 Harv. L. Rev. 1 (2017) (“Anti-administrativists fail to recognize

that the key administrative state features that they condemn, such as bureaucracy with its internal

oversight mechanisms and expert civil service, are essential for the accountable, constrained, and

effective exercise of executive power.”).

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