75 Am. U. L. Rev. F. 163 (2026).

Abstract

Administrative agencies regulate for the public health and welfare. And they also use confinement, violence, and coercion to enforce statutory and regulatory law. Scholars of coercive agencies (like prison and immigration enforcement ones) have, for years, been raising the alarm about the perils of government coercion with unlimited discretion. Critics of the administrative state have also loudly criticized agency discretion, although they have focused those criticisms on regulatory, not coercive agencies. But the conduct of coercive agencies has often been insulated from constitutional challenge. Civil rights litigation in prison and immigration law has faced roadblocks from doctrines of judicial deference that preclude ordinary constitutional limits.

Now that an anti-regulatory mood dominates the government and the Supreme Court, savvy litigators are using administrative law as a sword to argue that coercive administrative agencies should be constrained alongside their regulatory cousins. In the prison law context, Professor Erin Braatz argues that prison scholars and reformers should pay more attention to the fact that prisons are administrative agencies that should be regulated by administrative law.

But prison administrators have not accrued so much power simply because nobody has realized they are administrative actors. This Response argues that the administrative aspects of prison law have been largely a shield, not a sword: Judges defer to prison administrators because of their expertise, but that expertise is not limited by the ordinary legal guardrails placed on the regulatory state. As prisons bureaucratized across the twentieth century, prison administrative deference followed. And whatever source of law reformers have used to try to limit the power of prison agencies, courts have invented doctrines of deference to insulate prison administrator discretion from judicial interference.

Highlighting that coercive agencies are also administrative agencies is a helpful conceptual reorientation, but it is not enough. Until courts stop inventing deferential doctrines for the coercive state, neither legislators nor scholars will have to reconceptualize a vision of administrative law that safeguards against both regulatory and coercive agencies.

* Assistant Professor of Law, Michigan Law School. Thank you to Nicole Godfrey, Danielle Jefferis, Zina Makar, Margo Schlanger, and Tiffany Yang for insightful comments, and to Emma Block for research assistance. I am grateful to the editors of the American University Law Review for their diligent attention in editing this piece.