Agency Biopower: The Juridical Force Awakens

One of the most prominent features of biopolitics is the emergence of administrative law.  Created by statutory authority, numerous governmental agencies engage in rulemaking at a very granular level to interpret and apply broad statutory provisions.  For example, if a statute says that “banks” are to be regulated in the context of lending, an administrative agency might be asked to issue rules on whether payday lenders should be considered “banks” under the statutory definition.  Or, to adopt an example well-known from philosophy of law, suppose a federal law were to say “no vehicles in parks.”  The Park Service would be tasked with deciding what, exactly, constitutes a “vehicle.”  Is a skateboard a vehicle?  How about an actual jeep, minus its engine, to be used as part of a sculpture to honor veterans?  As the example illustrates, most of the actual regulatory power the statute has arises not in its vague provisions, but in the rules that interpret and apply those provisions.

Perhaps the best-known, recent real-world examples concern the Clean Air Act (CAA).  In 2007, the Supreme Court ruled that the EPA had the authority to – and was required to – regulate greenhouse gas emissions under the CAA.  The core question was whether carbon dioxide was a pollutant as defined by the CAA, which stipulates that the EPA has rulemaking authority to regulate emission of “any air pollution agent … , including any physical, chemical, … substance … emitted into … the ambient air,” and ought to do so when the pollutant  “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.”  If the EPA decides not to regulate such a pollutant, it needs to come up with a good reason why not, which the Court in this case concluded it had not.  The EPA was thus required to come up with rules about carbon emission for new vehicles.  More recently, in 2015, the Supreme Court ruled that the EPA exceeded its regulatory authority in restricting various emissions from coal plants because it failed to consider the cost of implementing those regulations.  These cases point to the rise of biopower as a form of governance, as administrative agencies grow in power relative to other kinds of governance, and become the locus of the sorts of micro-regulations that Foucault identified as the “police” function.

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