University of Kwazulu-Natal

The Administrative State S Second Face By Emily R Chertoff And

Bonisiwe Shabane
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the administrative state s second face by emily r chertoff and

Home > Faculty Publications > Faculty Scholarship > 4650 Emily R. Chertoff, Georgetown University Law Center Jessica Bulman-Pozen, Columbia Law SchoolFollow We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that governs it. While first-face administrative law demands delegated authority, transparent justification, and democratic collaboration, second-face administrative law allows agencies to operate without specific grants of power, to process knowledge in secret, and to control populations. Second-face administrative law inverts the ordinary norms of first-face administrative law. And where the first face drives legal and political conflict, the second face enjoys relative consensus. Bringing the second face into view qualifies talk of an ongoing “attack” on the administrative state.

It calls attention to neglected issues of enforcement, allows us to analyze how administrative law supports an interrelated set of violent state structures, and reveals that consensus support for second-face agencies is misguided. Those who seek to combat government overreach and to protect liberty and popular self-governance should turn their attention to the administrative state’s second face. The attack on the administrative state takes on only half of it—the wrong half. Published by The Lawfare Institute in Cooperation With In many ways, the first month of the second Trump administration has been shocking. The President has quickly and emphatically demonstrated his contempt for the Constitution, for Congress and the courts, and for federal workers and foreign allies alike.

But if some of the particulars have come as surprises, the basic outlines of the administration’s plan to decimate the regulatory and service-providing portions of government while consolidating and building executive enforcement capacity were... Shortly after his election, Trump announced that Elon Musk would “pave the way for my Administration to dismantle Government Bureaucracy, slash excess regulations, cut wasteful expenditures, and restructure Federal Agencies.” The America First Policy... Trump’s own flood of executive orders targets independent agencies and civil servants, among others. At the same time as it strikes at regulatory agencies, the Trump administration has been arrogating agency resources for a mass deportation plan that Stephen Miller calls “an undertaking every bit as . . .

ambitious as building the Panama Canal.” Even as it attempts to purge FBI agents seen as insufficiently loyal, the administration has detailed FBI and DEA officers and U.S. Marshals to interior enforcement work. It has used military planes for removals and the Guantanamo military base for immigration detention, and it is actively “ramping up plans to detain undocumented immigrants at military sites across the United States.” As... military capacity, increasing the number and authority of ICE officers, and devolving power to law enforcement field offices. Today’s Ad Law Reading Room entry is “The Administrative State’s Second Face,” by Emily Chertoff and Jessica Bulman-Pozen, which is forthcoming in the NYU Law Review. Here is the abstract:

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies. This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that governs it. While first-face administrative law demands delegated authority, transparent justification, and democratic collaboration, second-face administrative law allows agencies to operate without specific grants of power, to process knowledge in secret, and to control populations.

Second-face administrative law inverts the ordinary norms of first-face administrative law. And where the first face drives legal and political conflict, the second face enjoys consensus. Bringing the second face into view qualifies talk of an ongoing “attack” on the administrative state. It calls attention to neglected issues of enforcement, allows us to analyze how administrative law supports an interrelated set of violent state structures, and reveals that consensus support for second-face agencies is misguided. Those who seek to combat government overreach and to protect liberty and popular self-governance should turn their attention to the administrative state’s second face. This Article serves as a powerful summation of several nascent trends in administrative-law scholarship as well as an illuminating roadmap for future work.

Those trends include a renewed interest in enforcement and the administrative state as a realm of state violence; increased attention to defense, national security, and carceral institutions as sites of inquiry; and a burgeoning... In bringing together these pieces, “The Administrative State’s Second Face” complicates the story that paints a singular administrative state under increasing threat. In fact, Chertoff and Bulman-Pozen contend that certain agencies (those of the “second face”) have in fact been thriving, often feeding off legal standards that appear almost the opposite of those that work to... An important and eye-opening piece. Jessica Bulman-Pozen and Emily Chertoff discuss how judicial and political actors treat the two faces of the administrative state: one turned toward benefits and regulation, and one turned toward physical force and surveillance. https://lnkd.in/eU6dT-UH

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies. This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that governs it. While first-face administrative law demands delegated authority, transparent justification, and democratic collaboration, second-face administrative law allows agencies to operate without specific grants of power, to process knowledge in secret, and to control populations.

Second-face administrative law inverts the ordinary norms of first-face administrative law. And where the first face drives legal and political conflict, the second face enjoys relative consensus. Bringing the second face into view qualifies talk of an ongoing “attack” on the administrative state. It calls attention to neglected issues of enforcement, allows us to analyze how administrative law supports an interrelated set of violent state structures, and reveals that consensus support for second-face agencies is misguided. Those who seek to combat government overreach and to protect liberty and popular self- governance should turn their attention to the administrative state’s second face. Hester’s Dubious Roots and Legacy: Open Fields Doctrine Under Scrutiny, Laura K.

Donohue Accountability for Lawyers and Lawyer-Bashers: Reflections on Wendel's Canceling Lawyers, David Luban Religious Freedom, Jesuit Mission, and DEI, William M. Treanor and Amelia J. Uelmen Does the Original Meaning of the Fourteenth Amendment Protect Economic Liberty?, Randy E.

Barnett Learning about Stability of Risk Preferences, Levon Barseghyan, Francesca Molinari, and Joshua C. Teitelbaum "DOJ sues entire federal district court in Maryland over policy on immigration cases," NPR, July 8, 2025, featuring Professor Emily Chertoff. "8 Maryland sheriffs’ offices now partner with ICE, claiming it protects communities. Immigrant advocates say the opposite," The Baltimore Sun, July 3, 2025, featuring Associate Professor Emily R.

Chertoff. "'Disappeared in the United States' Protests Spread! ICE Agents Masked and Arrested People, Causing Panic," coverage in TVBS, June 26, 2025, featuring Professor Emily Chertoff. "Deported Migrant Denied Return | Law Professor Discusses U.S. Immigration Controversy," coverage in Dawn News, June 24, 2025, featuring Associate Professor Emily Chertoff. Accountability for Lawyers and Lawyer-Bashers: Reflections on Wendel's Canceling Lawyers, David Luban

Adjudicating Fake News, Filippo Lancieri, Caio Mario da Silva Pereira Neto, Rodrigo Moura Karolczak, and Barbara Marchiori de Assis AI Regulation: Competition, Arbitrage & Regulatory Capture, Filippo Lancieri, Laura Edelson, and Stefan Bechtold Asking the Right Questions About Legal Finance in United States Aggregate Dispute Resolution, J. Maria Glover Beyond Democracy: How a Free Press Supports the Rule of Law, Erin C. Carroll

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Home > Faculty Publications > Faculty Scholarship > 4650 Emily

Home > Faculty Publications > Faculty Scholarship > 4650 Emily R. Chertoff, Georgetown University Law Center Jessica Bulman-Pozen, Columbia Law SchoolFollow We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned towar...

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This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that governs it. While first-face administrative law demands delegated authority, transparent justification, and democratic collaboration, second-face administrative law allows agencies to operate without specific grants of power, to process...

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It calls attention to neglected issues of enforcement, allows us to analyze how administrative law supports an interrelated set of violent state structures, and reveals that consensus support for second-face agencies is misguided. Those who seek to combat government overreach and to protect liberty and popular self-governance should turn their attention to the administrative state’s second face. T...

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But if some of the particulars have come as surprises, the basic outlines of the administration’s plan to decimate the regulatory and service-providing portions of government while consolidating and building executive enforcement capacity were... Shortly after his election, Trump announced that Elon Musk would “pave the way for my Administration to dismantle Government Bureaucracy, slash excess re...

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ambitious as building the Panama Canal.” Even as it attempts to purge FBI agents seen as insufficiently loyal, the administration has detailed FBI and DEA officers and U.S. Marshals to interior enforcement work. It has used military planes for removals and the Guantanamo military base for immigration detention, and it is actively “ramping up plans to detain undocumented immigrants at military site...