This Article intervenes in a burgeoning literature on “administrative constitutionalism,” the phenomenon of federal agencies—rather than courts—assuming significant responsibility for elaborating the meaning of the U.S. Constitution. Drawing on original historical research, I document and analyze what I call “administrative equal protection”: interpretations of the Fourteenth Amendment’s Equal Protection Clause in a key federal agency at a time when the Clause’s meaning was fiercely contested. These interpretations
are particularly important because of their interplay with cooperative federalism—specifically, with states’ ability to exercise their traditional police power after accepting federal money.
The Article’s argument is based on a story of change over time. In the late 1930s, when federal courts appeared reluctant to vindicate equal protection claims, the Federal Social Security Board (later to become part of the Department of Health, Education and Welfare) took a more active role via its administration of federal grants for state-run public welfare programs. Through the 1940s and 1950s, agency lawyers developed and applied a nondeferential rationality model of equal protection to assess state welfare rules. When paired with the agency’s control over generous federal subsidies, this interpretation had tangible consequences: administrators challenged some of the era’s most restrictive state welfare laws and, in the process, spread the notion that poor Americans had constitutional rights, including under the Fourteenth Amendment. In the mid-1960s, as the agency became embroiled in battles over school desegregation, administrators deftly recharacterized their constitutional interpretation as a statutory one. They saw their
constitutional arguments take on new life, however, as welfare rights advocates (including former agency personnel) wielded them in court. Both developments are visible in the landmark case King v. Smith (1968). There the Supreme Court affirmed the poor claimants’ victory in the court below, but rejected the lower court’s equal protection holding in favor of one grounded in the agency’s novel statutory interpretation. Administrative equal protection thus continued to operate as a meaningful constraint on
state action—and in fact helped remake the administration of American poor relief in the late twentieth century—but remained hidden from view.
In addition to giving content and direction to the study of administrative constitutionalism, this history enriches legal scholarship in three ways: (1) it provides context for the “new federalism” revolution of the last decades of the twentieth century; (2) it opens up new questions about today’s uncooperative federalism”; and (3) it helps explain the penurious protections that today’s equal protection jurisprudence offers the poor.
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