Article

Subsidizing Segregation

What drives administrative officials to enforce the Constitution in particular ways? This Article recovers a forgotten civil rights struggle that sheds light on that question. Long after Brown v. Board of Education, federal education officials continued to fund segregated schools, arguing that their agency bore no immediate responsibility for implementing the Equal Protection Clause. In the present, that position seems deeply surprising—even at odds with the rule of law. But the administrators did what their agency had been designed to do: extend the federal role in education without thereby extending federal constitutional rights. Congress engineered the federal Office of Education, predecessor to today’s Department of Education, with the goal of providing federal support for schools while avoiding federal enforcement of the Constitution’s equality principles. Legislators and their allies found support for that approach in a different constitutional goal: deference to states’ authority within the federal system. The resulting institutional framework of federal support without federal rights enforcement endured until the Civil Rights Act of 1964 transformed it.

Civil rights leaders’ battle to enforce Brown’s principle against the federal government illustrates a basic feature of administrative constitutionalism: agencies can be designed to serve, or disserve, a broad range of constitutional goals. Any particular agency’s approach to the Constitution will reflect the enduring influence (and variability) of administrative mandate and structure. Those aspects of institutional design are shaped by Congress and the President, often in light of underlying divisions over the Constitution’s mandates regarding federal power, administrative authority, and substantive rights. As a result, an agency’s constitutional interpretations may reflect the outcomes of prior political struggles over constitutional principles, which become embedded in and transmitted through the agency’s specific institutional traits.

Understanding why agencies enforce the Constitution in specific ways thus requires understanding how political actors in Congress, the White House, and beyond have structured those agencies over time. That truth, encapsulated in the struggle over federal subsidies for segregation, also illuminates a key reason that racial segregation and inequality have been so difficult to uproot: much of the federal administrative state was initially designed to coexist with discrimination, not combat it.

The Writ-Of-Erasure Fallacy

The power of judicial review is all too often regarded as something akin to an executive veto. When a court declares a statute unconstitutional or enjoins its enforcement, the disapproved law is described as having been “struck down” or rendered “void”—as if the judiciary holds a veto-like power to cancel or revoke a duly enacted statute. And the political branches carry on as though the court’s decision has erased the statute from the law books.

But the federal judiciary has no authority to alter or annul a statute. The power of judicial review is more limited: It allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute. But the judicially disapproved statute continues to exist as a law until it is repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the executive. And it is always possible that a future court might overrule the decision that declared the statute unconstitutional, thereby liberating the executive to resume enforcing the statute against anyone who has violated it. Judicial review is not a power to suspend or “strike down” legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.

When judges or elected officials mistakenly assume that a court decision has canceled or revoked a duly enacted statute, they commit the “writ-of-erasure fallacy”—the fallacy that equates judicial review with a veto-like power to “strike down” legislation or delay its effective start date. This article identifies the origins of the fallacy, describes the ways in which the writ-of-erasure mindset has improperly curtailed the enforcement of statutes, and explores the implications that follow when judicial review is (correctly) understood as a temporary non-enforcement policy that leaves the disapproved statute in effect.

Congress as Elephant

Congress, considered in its entirety, seldom is an object of legal study. Scholars tend to concentrate on discrete features—its Commerce Clause authority, its power to declare war, or the impeachment functions of its chambers. This inclination toward a narrow focus reflects the fact that Congress is so multifaceted that even fathoming its complexity is rather daunting. So intimidating, in fact, that it has caused most scholars to shy away from a comprehensive treatment. This Essay attempts to fill that gap. The Constitution’s text and context suggest that the Founders envisioned Congress playing multiple constitutional functions. After comparing our Congress with its predecessor, the Continental Congress, this Essay describes six roles for Congress, only a few of which are familiar: Chief Lawmaker, Secondary Executive, Chief Facilitator and Overseer of the Magisterial Branches, State Overseer, and Enforcer of Constitutional Rights and Duties. Only when we appreciate Congress in all its complexity can we appreciate why Congress, as an institution, is more than the first branch amongst equals.

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