Some doctrinal courses like property or contracts that involve a “racially-charged history” and “doctrine [that] is inextricably linked to race” lend themselves more readily to the inclusion of issues of race and class. Even so, the inclusion of socioeconomic issues in traditional doctrinal courses, though growing more common, remains relatively rare, driven by notions of neutrality and “perspectivelessness” that mask […]

After thousands of angry Trump supporters invaded the US Capitol, assaulting law enforcement and stealing equipment, questions arose about how these individuals could have made it into the Capitol building. After all, when BLM protests had taken place on the Mall, hundreds of riot police had been prospectively deployed, along with the constitutionally questionable deployment of law […]

The protest movement that coalesced this summer around #BlackLivesMatter galvanized a long overdue public conversation about race in the United States. Students across the country are demanding that their professors reexamine their textbooks and revise their course materials to grapple with the ways that structural racism has shaped our various disciplines. Administrative law is no […]

Having served in various capacities in the Trump administration, including the White House, I wish the Biden administration well. I hope that Neera Tanden, if confirmed, can help develop the machinery to attack what I consider to be the biggest nondelegation issue in administrative law: the ability of bureaucrats and their economists to couch policy […]

As of this writing, the federal government is considering using race and ethnicity to allocate access to a new Coronavirus vaccine to combat Covid-19 when one becomes available. More specifically, the government is considering giving preference to African Americans and Latinos because they have been disproportionately affected by the pandemic.  Dean Dayna Bowen Matthew of the […]

Congratulations! The president nominated you, the Senate gave you a hearing—not a foregone conclusion these days—and you’re now confirmed to your post in the Biden administration. Whether you are to serve in the president’s cabinet, head up an agency within a larger department, or lead a division within an agency, you do have a significant […]

The pandemic hit the United States two years into a trade war, in which President Trump promised to “tax the hell out of China.” One casualty is that Americans pay more for Personal Protective Equipment (PPE), like face masks, medical gowns, and gloves. PPE helps prevent COVID infections. Meanwhile, the pandemic response suffers from racial disparity, a “crisis within a […]

In Bostock v. Clayton County,[1] the Supreme Court held that an employer who fires an individual merely for being gay or for being transgender violates Title VII.[2] In an opinion authored by Justice Neil Gorsuch, the Supreme Court explained that the Court’s decision was a matter of textualism: An employer who fires an individual for […]

Immigration law has contributed to shaping and reinforcing the construct of race more than any other area of administrative law. Congress and the Executive have shaped immigration law via express and implicit racial restrictions on membership in the United States political community, and with respect to the allocation of rights, such as racial restrictions on naturalization and […]

On January 20, 2021, President Joe Biden signed several executive actions to reverse many of the harshest immigration measures crafted under the Trump administration and to create a humane immigration system. A summary list of these immigration changes appears below. This commentary focuses on policy changes intersecting with a primary area of my research: prosecutorial […]

Racist, regressive leaders around the world have been instrumentalizing racism, discrimination, and “othering” to further their nativist goals. As I have argued elsewhere, regressive governments increase their own power by suppressing the rights of their opposition and subverting the rule of law often by invoking national emergency or national security rhetoric. The starting point to circumventing […]

Federal administrative agencies have existed since this nation’s founding – the First Congress created the Patent Office, the Departments of War, Foreign Affairs, and Treasury, and more. But in the century that followed, Congress rarely tasked any of those agencies with adjudicating the status of individuals so as to hand out benefits and burdens.[1]  The Fugitive […]

The proliferation of artificial intelligence has raised urgent questions about how the government should regulate and utilize this transformative technology. Two recent White House documents speak directly to these questions. The first is a November 2020 memorandum from the Office of Management and Budget (OMB), which provides formal guidance to federal agencies about “regulatory and […]

The debate over the propriety of the nationwide or “universal” injunction continues to unfold. Just this month, in a dissenting opinion in Little Sisters of the Poor v. Pennsylvania, Justices Ginsburg and Sotomayor took a stand in favor of the permissibility of such injunctions, balancing off comments to the contrary in earlier opinions by Justices […]

The latest decision from Acting Attorney General Rosen in Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) evidences, in many ways, what has been wrong about asylum adjudication under the current outgoing administration. I want to focus here on one specific strand of that wrongness: the “complete helplessness” standard as an interpretation of the […]