Karen M. Tani

Flemming v. Nestor: Anticommunism, the Welfare State, and the Making of ‘New Property’

This essay uses the 1960 Supreme Court case Flemming v. Nestor to explore the relationship between Cold War anticommunism, America’s burgeoning welfare state, and Charles Reich’s influential interpretation of constitutional due process. That interpretation, set forth in Reich’s seminal article “The New Property” (1964), is often remembered for its connection to the War on Poverty, the modern welfare rights movement, and the spectacular rise and fall of constitutional protections for the poor between the late 1960s and mid-1970s. This essay reminds readers of the article’s grounding in an earlier era and a broader set of concerns. Reich’s personal glimpses of anticommunist persecution showed him how the growth of the state — even its most benign-seeming arms — could create opportunities for the enforcement of political and ideological conformity. Flemming v. Nestor encapsulated Reich’s fears: After years of paying into Social Security, longtime U.S. resident Fedya Nestor was deported to Bulgaria and his benefits revoked, on account of his dabblings with the Communist Party (or more likely, the more serious involvement of his U.S. citizen wife and stepdaughter). In what Reich later described as “the most important of all judicial decisions concerning government largess,” the Supreme Court held that Nestor had no vested property interest in the benefits he had supposedly “earned,” and hence no valid claim under the Due Process Clause. A decade later, Flemming v. Nestor remained good law, but Reich and his followers had succeeded in convincing federal judges to adopt a different view: one that recognized the coercive potential within acts of government beneficence and that expanded the ambit of constitutional due process.

States' Rights, Welfare Rights, and the Indian Problem: Negotiating Citizenship and Sovereignty, 1935-1954

Starting in the 1940s, American Indians living on reservations in Arizona and New Mexico used the Social Security Act of 1935 to assert unprecedented claims within the American federal system: as U.S. and state citizens, they claimed federally subsidized state welfare payments, but as members of sovereign nations, they denied states the jurisdiction that historically accompanied such beneficence. This article documents their campaign, and the fierce resistance it provoked, by tracing two legal episodes. In 1948, through savvy use of both agencies and courts, and with aid from former government lawyer Felix Cohen, reservation Indians won welfare benefits and avoided accompanying demands for state jurisdiction; the states, in turn, extracted a price -- higher subsidies -- from the federal government. Arizona officials re-opened the dispute in 1951, by crafting a new welfare program that excluded reservation Indians and suing the federal government for refusing to support it. The 1954 dismissal of the case was a victory for Indians, but also leant urgency to efforts to terminate their anomalous status. Together these episodes illustrate the disruptive citizenship claims that became possible in the wake of the New Deal and World War Two, as well as the increasingly tense federal-state negotiations that followed.

Something Old, Something New: Reflections on the Sex Bureaucracy

This essay responds to “The Sex Bureaucracy,” in which Jacob Gersen and Jeannie Suk identify a “bureaucratic turn in sex regulation” — one that has expanded the reach of sexual regulation to include “nonviolent, non-harassing, voluntary sexual conduct” (or in their words, “ordinary sex”). In their view, the Department of Education’s campaign against sexual assault on college campuses epitomizes this bureaucratic shift. While applauding the authors’ attention to the intersection of sexuality and governance, we challenge their account of the “bureaucratic turn” as an unprecedented event. Drawing on examples from across U.S. history, we show how administrative agencies and unelected bureaucrats have persistently and robustly regulated sex and sexuality, including “ordinary sex.” Building on this more historical and nuanced portrait of America’s “sex bureaucracy,” we then identify what is truly new and striking about the slice that Gersen and Suk explore. In the Department of Education’s regulation of sex, we see clearly how consent — and specifically, affirmative consent — has replaced marriage as the boundary marker between licit and illicit sexual conduct. At a time when marriage no longer holds force as the distinguishing feature of lawful sex and sexuality, enthusiastic, unambivalent expressions of consent provide the state with documentable signals of appropriate sex and sexuality, while also, we speculate, reinforcing an ascendant neoliberal logic of citizenship and governance. In short, the “sex bureaucracy” is old, but innovative, and very much deserving of our scrutiny.