Civil Rights Enforcement in the Most Dangerous Branch

Source: Catherine Y. Kim, University of North Carolina (UNC) at Chapel Hill – School of Law, UNC Legal Studies Research Paper No. 2480134, August 13, 2014

From the abstract:
For decades, civil rights scholars have debated the relative institutional competencies of federal courts and administrative agencies in vindicating civil rights violations. Doctrinal developments diminishing the role of federal courts, however, render this comparison increasingly irrelevant. The scholarly focus must shift from the question of institutional choice, i.e., whether the judiciary is better suited than agencies to combat civil rights violations, to one of institutional design, i.e., how to design federal agencies to facilitate meaningful enforcement.

Skepticism toward administrative enforcement of civil rights reflects a fear that the President, as head of the executive branch, will manipulate – or subvert – agencies’ enforcement efforts for partisan ends, thereby raising broader separation-of-powers concerns. This article develops a framework for assessing how a given agency’s institutional design shapes the legal, political, and structural constraints to presidential policymaking discretion, and how these constraints vary depending on whether the policy is implemented through notice-and-comment rulemaking, the issuance of interpretive guidance, or the strategic exercise of prosecutorial discretion in enforcement proceedings. Given agencies’ freedom to choose between policymaking tools, this structure creates incentives for an administration to channel policy decisions – particularly controversial ones – through certain tools precisely to circumvent constraints on its discretion. This analysis carries important implications beyond the civil rights context, offering insights into enforcement debates across regulatory contexts, including the current debate over administrative relief for undocumented aliens.