Policing as administration.

• Author: Slobogin, Christopher
• Position: III. Why Administrative Law Applies to Panvasive Searches and Seizures through Conclusion, with footnotes, p. 120-152

3. WHY ADMINISTRATIVE LAW APPLIES TO PANVASIVE SEARCHES AND SEIZURES

   Administrative agencies exist in large part because legislatures (and courts) do not have the expertise or resources to deal with the complex regulatory issues that arise in a modern state. (152) For most agencies, that expertise is exercised within the substantive and procedural constraints of the federal Administrative Procedure Act (APA) and its state and local equivalents. (153) While the Constitution supplies the legal backdrop, administrative law is the primary means of regulating most agencies. (154)

   The analogy to police departments is straightforward. Police and other law enforcement agencies possess expertise about the various ways the criminal law and associated regulatory statutes can be enforced that legislatures (and courts) usually do not have. Police agencies are much better positioned to make decisions about resource allocation and the relative efficacy of enforcement methods than are other institutions. (155) The assertion made here is that, as in other administrative contexts, exercise of that expertise should be mediated through administrative law.

   If administrative law were the template governing panvasive searches and seizures, the relevant inquiries would not be about whether the primary purpose of a program is crime control or whether that purpose is compelling, nor would they center on the program's efficacy compared to a suspicion-based regime. Rather, as is the case with the programs of other agencies, the focus would be on whether the police department has followed a rational procedure that produced a rational policy consistent with legislative directives and on whether the policy is implemented in an evenhanded manner. (156) While this regulatory regime is fairly deferential to police-initiated programs, it would impose more structured constraints on them than current Supreme Court law does. In fact, an administrative law regime of the type described below would not countenance the outcomes in many of the cases in which the Court has approved panvasive searches and seizures, or at least would place a heavier burden on the government in order to prevail.

   Before explaining this conclusion, a key predicate question must be addressed: why haven't police agencies been subject to the constraints of administrative law already? If the analogy described above is so evident, why hasn't it been formally recognized by commentators or courts? Indeed, to the extent the issue has been addressed, the accepted wisdom is directly to the contrary. For instance, even though the Administrative Procedure Act does not include law enforcement in its exemptions, (157) the leading treatise on the subject flatly states that "administrative law includes the entire range of action by government with respect to the citizen or by the citizen with respect to the government, except for those matters dealt with by the criminal law." (158) David Zaring has noted that, at the federal level, "[t]he DOJ ... does not make policy through the APA. Its important criminal law function is regulated by the courts through criminal, rather than administrative, procedure." (159) Despite the extensive efforts of well-known scholars such as Kenneth Culp Davis and Anthony Amsterdam going back to the early (1970) s, (160) police agencies have for the most part remained immune from the formal strictures of administrative statutes. Of course, most police departments have some regulations, governing everything from use of deadly force to traffic stops. (161) But none of these rules are required to go through the filter of the APA as occurs with other agencies.

   This immunity from regulatory oversight, to the extent it is absolute, is illegitimate for three reasons. First, virtually all other public officials have always been subject to administrative law. The fact that police are exempt appears to be an inadvertent byproduct of judicial constitutional activism and our federalist structure rather than a considered policy development. Second, despite the Fourth Amendment's practical preemption of the field, the Supreme Court's cases--in particular, its inspection cases--can be interpreted as a command that administrative law governs in the panvasive context. And third, even if Fourth Amendment precedent is inapposite in this setting, the generalized, prospective nature of panvasive searches and seizures, as distinguished from suspicion-based searches and seizures, requires that they function consistently with administrative law principles.

   1. Police and the Development of Administrative Law

      The term "new administrativist" implies, correctly, that regulating police through administrative law is not a new idea. As early as 1903, Bruce Wyman at Harvard Law School was asserting that police should be subject to the constraints of administrative law. (162) In his book published that year, The Principles of the Administrative Law Governing the Relations of Public Officers, he devoted sections to arrest and to seizure of property, and discussed the use of force and warrant and cause requirements. (163) While he recognized that the latter requirements come from the "law of the land," he saw administrative rules as a way to mitigate their effect on officers who acted fairly. (164)

      Fast forward to the 1970s when scholars such as Davis, Amsterdam, and Judge Carl McGowan were advocating for application of administrative law principles to the police, (165) and several national organizations, including the American Bar Association, the Law Enforcement Assistance Administration, and the International Association of Chiefs of Police made similar declarations. (166) Probably best known is the work of Davis, who published Police Discretion in (1975), and an article making similar points the same year. (167) Bemoaning the fact that police are not governed by "the principles of administrative law," he argued that "administrative law thinking can be profitably applied to criminal administration." (168) He went on to make several provocative assertions:

      Five basic facts about police policy are astonishing: (1) Much of it is illegal or of doubtful legality. (2) Subordinates at or near the bottom of the organization, not top officers, make much of it. (3) Most of it is kept secret from those who are affected by it. (4) Police policy is characteristically based on superficial guesswork and hardly at all on systematic studies by staffs of qualified specialists or on investigations like those conducted by our best administrative agencies and legislative committees. (5) It is almost completely exempt from the kind of limited judicial review deemed necessary for almost all other administrative agencies. (169) Davis's hope was that courts would address this "astonishing" situation through administrative law. In particular, he wanted to use administrative principles to regulate what he called "selective enforcement," the exercise of discretion in deciding whom to arrest or search among those suspected of violating the law. (170)

      Between these publications of Wyman and Davis came a deluge of laws meant to regulate the administrative lawmaking process, triggered in large part by concern about the huge discretion wielded by New Deal agencies. (171) Congress enacted the federal Administrative Procedure Act in (1946) and, within the next few decades, every state followed suit, although their approaches did not always mimic the federal statute. (172) These administrative procedure acts were meant to regularize rulemaking and adjudication by administrative agencies, increase agency accountability, ensure an opportunity for public input during agency rulemaking deliberations, and reduce, in the federal APA's words, "arbitrary" and "capricious" conduct by the agencies. (173) By the time Davis was writing, courts had produced a considerable amount of case law exploring the role of the courts in ensuring agencies followed these statutes. Davis pointed in particular to Supreme Court and lower court decisions that had required agencies to develop "ascertainable standards" governing their discretionary actions. (174) Although none of these cases involved the police, Davis believed they stood for the proposition that any administrator, including a police administrator, "violates due process if he fails to confine and structure his discretion to the extent required to avoid unnecessary arbitrariness in the choices made." (175)

      Since Davis wrote, judicially required administrative rulemaking and judicial review of those rules have burgeoned. (176) Yet, police agencies have remained largely unaffected by these developments, and the courts have not picked up on Davis's suggestion. Nor have the arguments of the new administrativists fared any better.

      One set of explanations for this void might focus on ways in which the function of the police differs from that of other agencies. Arguments along these lines would suggest that intermeddling with police work by inexpert judges will lead to particularly costly mistakes (including needless loss of life), or that police need more speed and flexibility than other public officials and therefore cannot be saddled with rulemaking requirements. (177) Another concern, often voiced by police themselves, is that police decisionmaking requires greater secrecy than is typically permitted in an administrative law regime. (178)

      None of these attempts at distinguishing police agencies from other agencies works. Judicial second-guessing of agency decisions can exact enormous costs in a host of other settings involving, for instance, pollution, food, and health regulations, yet judicial review persists in all of them. (179) Speed and flexibility are important in connection with any number of executive branch activities, ranging from environmental protection to health-related matters to financial regulation, and the relevant agencies have managed to function despite rulemaking...