Killing Jim Crow and the Undead Nondelegation Doctrine With Privately Enforceable Federal Regulations

• Publication year: 2006

SEATTLE UNIVERSITY LAW REVIEWVolume 29, No. 4SUMMER 2006

COMMENTS

Killing Jim Crow and the Undead Nondelegation Doctrine with Privately Enforceable Federal Regulations

Brian J. Sutherland(fn*)

Many of the ugly pages of American history have been obscured and forgotten .... America owes a debt of justice which it has only begun to pay. If it loses the will to finish or slackens in its determination, history will recall its crimes and the country that would be great will lack the most indispensable element of greatness-justice.

-Dr. Martin Luther King, Jr.(fn1)

I. Introduction

Jim Crow is not dead.(fn2) Though the decades since the Civil Rights Movement have seen a deep change in the conscience of this country and much progress has been made toward eliminating racial discrimination, Jim Crow still lurks throughout American society.(fn3) These days, however, while he no longer strides invincibly in the armor of apartheid, the law still furnishes his means and serves his ends. Racial discrimination now occurs primarily through the disproportionate distribution of the costs and benefits of infrastructure,(fn4) industry,(fn5) and community development,(fn6) and institutional administration.(fn7) Such disproportionate distribution favors affluent, predominantly white communities over communities of color primarily because the latter are less able to challenge the legal processes that authorize such inequitable development.(fn8) The inability to effectively challenge such institutional injustice results from lack of access to legal representation and the lack of legal bases upon which to mount such challenges.(fn9) In this manner the law still stands as a tool of racial injustice, insofar as it authorizes the acts of those who perpetrate discrimination. This is the face of racism today. Jim Crow lives, though his crimes are now committed in a more complex, institutional mode.

A prime example of this phenomenon can be found in the recent development plan for a sorely needed mass transit system in and around Seattle, Washington. The local transit authority, Sound Transit, is building a light-rail system to serve the greater Puget Sound area,(fn10) but because of the irregular topography of Seattle, developing a construction plan has been a difficult task.(fn11) Sound Transit decided to build the rail underground through tunnels in some neighborhoods, elevated above ground in other neighborhoods, and at street-level in others.(fn12) To the south of Seattle lies Rainier Valley, a community composed predominantly of persons of color.(fn13) Rainier Valley is one of those neighborhoods through which the light-rail is being built at street-level, at an overwhelmingly disproportionate cost to its residents.(fn14) This shocking disparity prompted George Curtis, a member of the Save Our Valley organization,(fn15) to denounce Sound Transit's administration of the project as an "epic of ongoing deceit and institutional racism."(fn16) Save Our Valley's subsequent unsuccessful legal challenge to the Sound Transit project(fn17) highlights both the reality of institutional racism and the inadequacy of current tools to challenge it in the courts.(fn18)

Institutional racism, a conceptually distinct form of racial discrimination, seems to have surfaced first in the terminology of activists Kwame Toure(fn19) and Charles Hamilton. In the influential book Black Power: The Politics of Liberation, Toure and Hamiliton contrasted institutional racism with the more familiar individual racism as being "less overt, but far more subtle, less identifiable in terms of specific individuals committing the act[s] ... that are destructive of human life."(fn20) Another noted scholar defined institutional racism in two stripes: "direct institutionalized discrimination" consisting of "organizationally prescribed or community-prescribed actions which have an intentionally differential and negative impact on members of subordinate groups," and "indirect institutionalized discrimination" consisting of the same type of practices which, "though organizationally prescribed, are carried out without prejudice or intent to discriminate."(fn21) Institutional racism must also be understood more broadly, as articulated by another pair of pioneering theorists, Louis Knoules and Kenneth Prewitt.(fn22) They stressed that it must be recognized as a historical phenomenon, "embedded in American society," and defined it pithily as a "network of institutional controls through which social benefits are allocated."(fn23)

This Comment employs a definition that is perhaps more narrow in theoretical and sociological scope, but more comprehensive in terms of its description of effects. Institutional racism is racial discrimination perpetrated whether intentionally or not within the policies, practices, procedures, laws, rules, or regulations of any public or private institution. It is the legacy of American slavery and a lingering obstacle to true racial equality in this country.

Institutional racism is a very difficult problem to solve. It is much more complex and more difficult to identify than conventional racial discrimination,(fn24) and for this reason it is "more dangerous-harder to combat and easier to ignore."(fn25) A primary reason for this difference is that while only intentional discrimination is currently prohibited by the U.S. Constitution,(fn26) institutional racism often occurs without intent, or without satisfactory proof of intent, by operation of seemingly benign policies, procedures, and practices that cause the same devastating results of discrimination, segregation, and inequality of opportunity.(fn27) Moreover, although some such policies and procedures have been identified as discriminatory and prohibited by law,(fn28) these prohibitions too often fail to protect the victims of discrimination because they cannot be privately enforced, and the government officials charged with enforcing them are either unable or unwilling to do so.(fn29)

This Comment has two goals. First, it seeks to contextualize, within the reality of institutional racism, the debate over the private enforceability of federal regulations under 42 U.S.C. § 1983.(fn30) On the one hand, the regulations promulgated pursuant to Title VI of the Civil Rights Act of 1964(fn31) already include many provisions which effectively confront the vestiges of racially discriminatory law and policy.(fn32) The logical inference is that these perfectly proscriptive federal regulations ought to be enforceable, through private lawsuits if necessary, in order to enjoin and deter such policy and procedure.(fn33) On the other hand, federal administrative agencies have the ability to attend to the complex social, political, and economic factors perpetuating systematic racial discrimination, and this is a compelling reason to recognize and encourage such activity on their part in the future.

The second aim of this Comment is to contribute to the developing discourse by proposing a more sound approach to the legal question of whether agencies can exercise their delegated authority to create rights that are privately enforceable under § 1983. Split decisions in the circuit courts(fn34) and two United States Supreme Court cases not squarely addressing the issue but nonetheless suggesting the answer(fn35) have begun to produce a small body of competent scholarship.(fn36) However, not only has most of this commentary failed to contextualize the legal issue with respect to racial justice and equal protection,(fn37) the legal arguments for refusing to recognize agencies' power to create individually enforceable rights are untenable. The primary doctrinal justification(fn38) relies on a theory of the nondelegation doctrine(fn39) that is marked by remarkable obsolescence-such a narrow view of legislative delegation "flies in the face of seventy years of administrative law."(fn40) A refusal to recognize agencies' power to create privately enforceable rights serves little purpose but to maintain a withering and unworkable framework for addressing exercises of delegated authority, while at the same time risking the loss of a very effective tool in confronting institutional racism. It also represents a crabbed conformity to the current trend in the federal judiciary of limiting remedies for the violation of rights,(fn41)' which is, in turn, a serious threat to the realization of equal justice under law.

Part II of this Comment will sketch the contours of institutional spheres where racism persists today. Part III of this Comment then proceeds to acquaint the reader with the relevant cases and commentary that have addressed the issues relating to the private enforceability of federal regulations as a matter of law. These sources focus primarily on principles of administrative law, statutory interpretation, and congressional intent as to the creation of individually enforceable rights and remedies. Part IV of this Comment will then undertake a discussion of the nondelegation doctrine and its theoretical bases in the context of regulatory rights creation, which compels the conclusion that the soundest approach is to recognize the power of agencies to create rights privately enforceable under § 1983, so long as the discretion to do so is properly constrained by particularized judicial review.

II. CONSTITUTIONALLY UNPROTECTED SPACES: INSTITUTIONAL RACISM...