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Faculty Scholarship

When Administration Goes Awry

Professor Bijal Shaw unearths flaws, offers solutions.

       
Illustration by Kagan McLeod
Pocket Résumé
Bijal ShahDegrees: BA, Brandeis, 2001; MPA, Harvard and JD, Yale, 2007. Experience: Quality Assurance Officer, US Citizenship and Immigration Services, Department of Homeland Security 2010-2011; Associate General Counsel, Executive Office of Immigration Review, Department of Justice 2011-13. Teaching: Law faculty, New York University (NYU), 2013-2016; Arizona State University, 2016-2022; Boston College, 2022-date. Media Articles: in Harvard Law Review, Stanford Law Review, Yale Journal on Regulation, Minnesota Law Review, and numerous other law journals.

The Idea: Mistreatment of vulnerable citizens such as immigrants, the poor, and people of color by federal agencies is widely perceived to arise out of bias on the part of individual administrators. But often it results, ironically, from an agency’s adherence to public interest values. Even if adhered to in good faith, values such as speedy resolution of disputes and questions, conservation of agency resources, and the creation of synergies through centralization can lead to one-sided procedures, hasty decisions, and the misallocation of resources, among other problems.

The Impact: Professor Bijal Shah’s scholarship on administrative law has caught the eye of big media, her professional colleagues, and advocates for vulnerable communities. Her comments have informed reports by the likes of NPR, TIME,The American Prospect, Bloomberg, ABC, PBS, and The Guardian. Her work has been cited in numerous law reviews, including those of Yale, Stanford, Harvard, and Columbia. And, recently, she began consulting pro bono with legal services agencies across New York City on ways to improve their representation of clients.

Shah’s scholarship has roots in her work in the federal bureaucracy. Soon after finishing law school, she spent five years there, first as a Presidential Management Fellow detailed to the Departments of Homeland Security (DHS), Justice, and State, and then as a lawyer for the US Citizenship and Immigration Services and the Executive Office for Immigration Review. During those years, she developed what she calls “a keen sense that scholars don’t understand how the government operates. There were lots of ways that agencies functioned that weren’t transparent.” Now a scholar herself, she’s taken on the project of, as she puts it, “opening that black box.” 

What goes on inside the black box doesn’t always look pretty, judging from Shah’s article “Administrative Subordination,” forthcoming in the University of Chicago Law Review, which considers case studies of administration gone awry. Shah starts with the DHS agencies charged with enforcing immigration law, faulting them for using arrest records—more quickly and cheaply obtained than records of actual convictions—to put immigrants into deportation proceedings. Rather than demonstrating criminal conduct, she adds that arrest records may “just mean that this is a person of color who lives in a community that’s more heavily policed,” which unfairly renders that person more vulnerable to immigration enforcement based on criminality.

Even if adhered to in good faith, values that federal agencies propagate can lead to one-sided procedures, hasty decisions, and the misallocation of resources, among other problems.

Parsimony and the push for speed can also lead to unjust outcomes on the environmental front. The Federal Energy Regulatory Commission, for instance, which rules on applications to site energy facilities, relies on data and analysis from applicants, thus saving itself the time and the cost of an in-house study that might offset self-interested analysis in an applicant’s submission. Even if opponents of an application come forward with their own data, Shah says, it’s “very much up to the discretion of the agency” whether to even consider it, let alone give it equal weight with information from the applicant. This lopsided process has helped lead to pipelines that, according to opponents, endanger the lives and livelihoods of Indigenous people.

Moving the Federal Emergency Management Agency (FEMA), formerly a freestanding entity, into DHS in 2002, provides a good example of counterproductive centralization. Since then, the agency, whose mission doesn’t mesh well with DHS’s narrowly defined national-security emphasis, has been starved of resources by its parent, says Shah, forcing it to react to emergencies rather than to prepare for them. This problem is illustrated by the stranding of New Orleans residents, mostly low-income, during Hurricane Katrina in 2005. After that debacle, Congress redefined FEMA “as a distinct agency under DHS,” according to Shah. “To my mind, [this] is an indication that Congress attributed some of FEMA’s failures in Katrina to the dilution of its mission by DHS’s overarching mandates.” Whether the post-Katrina change has been enough to set the agency aright may be inferred from FEMA’s dismal performance in Puerto Rico during 2017’s Hurricane Maria.

Of the solutions Shah proposes, many fall under two headings. The first, revised legislative mandates, includes her suggestion that agencies like FERC and the immigration apparatus be incentivized, through earmarks or limitation riders, to base their decisions on better data. The second would move agencies into departments whose missions are compatible with their own—for example, Shah envisions FEMA with a new home in the Department of Justice or Health and Human Services. Both solutions would require action by Congress at a time when the House, in particular, is experiencing turmoil, such that legislation shaping or reconfiguring federal agencies may not be possible. For now, Shah seeks something more modest: Agencies themselves “improving their procedures to take into account minority voices,” perhaps under the direction of the current presidential administration.