Regulating Race: Asian Exclusion and the Administrative State
![handle is hein.journals/hcrcl37 and id is 7 raw text is: Regulating Race:
Asian Exclusion and the Administrative State
Gabriel J. Chin*
I. INTRODUCTION
The rise of administrative bodies, Justice Robert Jackson wrote,
probably has been the most significant legal trend of the last cen-
tury... They have become a veritable fourth branch of the Government
... It is easy to see why Justice Jackson's view is widely shared.2 The
great federal regulatory agencies exert significant influence over large
sectors of the national economy. Other governmental bodies administer
programs, like Social Security and Medicare, that will benefit nearly
every American at one time or another; others maintain programs that
* Rufus King Professor of Law, University of Cincinnati College of Law. L.L.M., Yale
Law School, J.D., Michigan Law School, B.A., Wesleyan University. E-mail: gchin@aya.
yale.edu. I am grateful to a number of people for comments and other assistance: Lenni
Benson, Don Blair, Paul Caron, Gretchen Feltes, Barry Friedman, Jim Gardner, Jim Hart,
Helen Hershkoff, Lonny Hoffman, Harold Krent, Nancy Morawetz, Francis Mootz, Donna
Nagy, Gerald Neuman, Pat Newcombe, Mae Ngai, Jim O'Reilly, Wendy Parker, Terri
Radwan, John Reid, Peter Schuck, Michael Solimine, Joseph Tomain, Michael Van Al-
stine, Michael Wishnie, Linda Yannuzzi, Cheryl Harris, and other participants at the Con-
ference of Asian Pacific American Law Faculty at the University of Hawaii, William S.
Richardson School of Law, and participants in workshops at the law schools of Boston
College, the University of Cincinnati, New York University, Villanova University, Wayne
State University, and the Immigration Law Teachers' Workshop at St. Mary's Law School.
I FTC v. Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J., dissenting).
2See, e.g., INS v. Chadha, 462 U.S. 919, 984 (1983) (White, J., dissenting) (quoting
Ruberoid, 343 U.S. at 487 (Jackson, J., dissenting)); Ballerina Pen Co. v. Kunzig, 433 F.2d
1204, 1208 (D.C. Cir. 1970) ([A]s the 'fourth branch of government,' the administrative
agencies may well have a more far-reaching effect on the daily lives of citizens than do the
combined actions of the executive, legislative and judicial branches... :'); STEPHEN G.
BREYER ET AL., ADMINISTRATIVE LAW AND REGULATORY POLICY 1 (4th ed. 1999) (Mod-
em government is administrative government.); RONALD A. CASS ET AL., ADMINISTRA-
TIVE LAW: CASES AND MATERIALS 1 (3d ed. 1998) (We live in an administrative state.);
William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEo. L.J.
523, 527 (1992) (noting change from original intent arising from [tihe advent of the ad-
ministrative state, in which much 'lawmaking' is accomplished by agencies dominated by
the President); James Willard Hurst, Consensus and Conflict in Twentieth Century Public
Policy, 105 DAEDALUS: J. AM. ACAD. ARTS & Sci. 89, 89 (1976) (calling the administrative
state a significant watershed); Daniel J. Solove, The Darkest Domain: Deference, Judi-
cial Review, and the Bill of Rights, 84 IowA L. REv. 941, 959 (1999) (One of this cen-
tury's most profound developments in the American social and political structure was the
rise of the bureaucratic state:'); Kenneth Starr, Tribute, 1988 ANN. SuRv. AM. L. xiii
(calling the emergence of the independent agency the principal structural development of
this century).](ViewImageLocal?handle=hein.journals/hcrcl37&div=6&collection=&method=preview&ext=.png&size=3)
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Regulating Race: Asian Exclusion and the Administrative State
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