The Invisible Driver of Policing

By Farhang Heydari

This Article connects the administrative state and the criminal system—two dominant modes of governance that too often are discussed in isolation. It presents an original account of how the policies and the failures of federal administrative agencies drive criminal law enforcement at the local level. In doing so, this Article exposes a significant driver of criminal policy and possible interventions to correct some of its failures. The primary vehicle for this analysis is an in-depth case study of the National Highway Traffic Safety Administration (NHTSA)—the federal agency best known for crash test dummies and five-star ratings as part of its traffic-safety mission—and its support for pretextual traffic stops. This Article unearths a series of NHTSA programs that have, for decades, trained state and local police to use traffic stops to ferret out drug traffickers, violent criminals, and even terrorists. NHTSA’s embrace of a policing mindset has become an unexpected enabler of pretextual stops, one that has pulled agency resources away from systemic regulation of the auto industry. The impact of NHTSA’s quiet campaign has been significant, engraining its view of traffic stops within policing agencies across the country without public visibility or oversight. These revelations come at a critical moment for a nation struggling with twin crises of traffic safety and policing. Learning from NHTSA and moving to the broader administrative state, this Article draws on a diverse set of agencies to identify a pattern of non-law-enforcement agencies shirking their systemic regulatory duties in favor of individual criminal law enforcement. The result is that parts of the administrative state have become systemic drivers of overpolicing and criminalization in ways that have, until now, received virtually no attention.

76 STAN. L.REV. 1 (2024)