The Administrative State S Two Faces Lawfare

Bonisiwe Shabane

-Dec 17, 2025, 12:13 PM

the administrative state s two faces lawfare

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. 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. 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. The hidden nature of the administrative state contributes to misperceptions of important government policies. Why is the federal government so unpopular?

For many Americans, the answer to this question appears self-evident—the government is unpopular simply because it does a bad job. As law professor Peter Schuck writes, “across many different policy domains, the public perceives poor governmental performance – and generally speaking, the public is correct in this view.” Another prominent perspective focuses on ideological... Although there is some truth to both of these perspectives, they do not tell the whole story. Another major factor is that even when the government is effective in providing benefits or addressing social problems, few Americans understand its achievements. For instance, consider President Joseph R. Biden’s signature legislation, the Inflation Reduction Act (IRA), which delivers historic investments in combatting climate change, curbs prescription drug prices, and expands subsidies to obtain health insurance.

These are undeniably important achievements. Yet public opinion surveys have consistently shown that most Americans have no idea what this law does or how it will benefit them. Nor is this an isolated incident. For years, polling found a lack of awareness of President Barack Obama’s signature legislation, the 2010 Patient Protection and Affordable Care Act (ACA), which represented the largest expansion in health insurance coverage since the... It was only when Republicans came close to repealing the ACA in 2017 that enough public support emerged to save the law—barely. 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.

The administrative state is a term used to describe the power that some government agencies have to write, judge, and enforce their own laws. Since it pertains to the structure and function of government, it is a frequent topic in political science, constitutional law, and public administration.[1][2][3] The phenomenon was relatively unknown in representative democracies before the end of the 1800s. Its sudden rise has generated considerable scholarship, writing, and study to understand its causes and effects, and to square it with previous notions of law and governance.[4][5][6][7] The administrative state is created when legislative (law-making) bodies, like the U.S. Congress or the U.K.

Parliament, delegate their lawmaking powers to administrative or private entities.[8] Nondelegation is a legal principle that a branch of government cannot authorize another entity to exercise powers or functions assigned to itself. It is sometimes used to argue that the power of administrative agencies to write laws is unconstitutional, illegal, or otherwise invalid, or that it imposes restrictions on administrative agencies in their exercise of these... The second power of the administrative state comes from judicial deference. In technical terminology, judicial deference is a standard of judicial review that applies when a court defers to an agency's interpretation of a law. Sometimes the law is made by the legislature, and sometimes by the agency itself.[11]

The Trump Administration’s tidal wave of presidential directives has unleashed a tsunami of litigation. The Administration has issued 89 executive orders in its first fifty days, ordering cabinet secretaries and others to reverse Biden Administration policies, rescind regulations, reduce staffing levels, and limit immigration. In response, states, interest groups, and others have filed over 120 lawsuits in federal court. (A running tally of suits filed against the Trump Administration can be found here.) State governments—or, more precisely, blue state governments—have taken the lead in filing challenges to many of the Trump Administration’s most high-profile initiatives, including its efforts to narrow birthright citizenship, reduce the federal workforce, and... In over a dozen lawsuits and many more amicus briefs, blue state governors and attorneys general accuse the Trump Administration of violating federal law and, in some cases, the Constitution.

Red states have not sat on their hands either, as many have been equally active in filing amicus briefs to defend the Trump Administration’s initiatives against legal attacks. State resistance to the federal government is nothing new. James Madison expected state governments would push back against federal overreach to the benefit of individual liberty. As he explained in Federalist 51, the Constitution creates a “compound republic” in which each level of government has its own sovereign power derived from the people. States are not subdivisions, but “distinct governments.” Constraining federal power and preserving state policy prerogatives helps check governmental intrusions and fosters greater self-government. The compound federalist structure, Madison expected, would provide a “double security” for “the rights of the people” as the federal and state governments press against each other, each seeking political support.

Part of how states work to protect individual liberty is by preserving their authority to serve the interests and wants of their citizens. Curiously enough, few of the lawsuits filed against the Trump Administration have anything to do with state prerogatives or state power. While some of the suits concern efforts to pause or limit funding to state institutions, such as state universities, or seek to limit the preemptive effect of federal policy, most concern naked policy disagreements... Blue states are challenging the policy initiatives of a Republican president not because these initiatives constrain state choices or injure state interests but because they advance the agenda of the other team. Red states, in turn, are lining up to support the President without regard for whether distinct state interests are at stake. The use of litigation as a proxy for political contestation by state AGs is not new, but it has been increasing at a dramatic rate.

The Administrative State S Two Faces Lawfare

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