1343 In addition, acts by other branches of government “by whatever instruments or in whatever modes that action may be taken” can result in a finding of “state action.” 1344 But the difficulty for the Court has been when the conduct complained of is not so clearly the action of a state. 1342Ĭertainly, an act passed by a state legislature that directs a discriminatory result is state action and would violate the first section of the Fourteenth Amendment. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.” 1339 Although state action requirements also apply to other provisions of the Constitution 1340 and to federal governmental actions, 1341 the doctrine is most often associated with the application of the Equal Protection Clause to the states. 1338 As the Court has noted, “the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. State Action.-The Fourteenth Amendment, by its terms, limits discrimination only by governmental entities, not by private parties. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any State deprive any person of life, liberty, or property, without due process of law nor deny to any person within its jurisdiction the equal protection of the laws. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. 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.SECTION 1. 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. 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. Both developments are visible in the landmark case King v. They saw their constitutional arguments take on new life, however, as welfare rights advocates (including former agency personnel) wielded them in court. In the mid 1960s, as the agency became embroiled in battles over school desegregation, administrators deftly recharacterized their constitutional interpretation as a statutory one. 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. Through the 1940s and 1950s, agency lawyers developed and applied a nondeferential rationality model of equal protection to assess state welfare rules. 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. The Article’s argument is based on a story of change over time. 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. 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. 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.
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