Proxy Discrimination in Public Contracting
This Article considers the legality of racial preferences in government contracting in light of the Supreme Court’s decision in Students for Fair Admissions v. Harvard. Newfound heightened scrutiny of contracting programs may cause governments to turn to proxy discrimination to avoid such scrutiny, but such proxy discrimination would be unlawful under well-established Supreme Court precedent. Indeed, proxy discrimination would be just as unlawful in contracting as it is in other areas. A better path forward to support entrepreneurs of all racial and ethnic backgrounds would embrace genuinely race-neutral programs.
Originalism and the Illusions of Objectivity
Law needs objectivity. Can originalism provide it?
Delegating the Immigration Power
Nowadays, we take for granted the President’s authority over immigration. Presidents of both parties have decided important and contentious questions about the country’s approach to humanitarian protection, admissions, and deportations. In doing so, they have invoked authority delegated by statute. Where there is delegation, the nondelegation doctrine has something to say.
This Article considers whether (and to what extent) our separation of powers cabins Congress’s ability to delegate immigration matters to the President. I argue that the federal government’s power to regulate immigration finds home in both Article I and Article II: Congress is vested with the power to make rules about who may enter and stay in the United States; the President is vested with the discretion to decide whom—among the millions of people deportable under the rules created by Congress—to actually deport. The political branches have largely unchecked power within their respective domains. Framed this way, the President lacks inherent executive power to decide who is inadmissible or deportable. He may do so only to the extent authorized by Congress, and Congress may extend such authorizations only to the extent permitted by the nondelegation doctrine.
As we take stock of President Biden’s immigration record and as federal courts are asked to enjoin the entire gamut of President Trump’s immigration agenda, now is a good time to examine whether our immigration system is consistent with separation-of-powers first principles.
The Presidential Communications Privilege
Executive privilege has several components. But its core is the presidential communications privilege, which protects presidential communications as well as communications authored or solicited and received by the President or his close advisers in furtherance of presidential decisionmaking. Yet despite the importance of this doctrine to the operation of government and case law, there is no full treatment of this topic in scholarship. This article fills that gap. It traces the history of the doctrine, focusing on the Nixon trilogy and In re Sealed Case. It analyzes open questions concerning the scope of the privilege, including how it applies to former presidents, who qualifies as a close adviser, what counts as a solicitation, and how far down the chain of government the privilege extends. It also argues for clarifying existing doctrine in several ways, including by imposing bright-line rules for who qualifies as a close adviser. Finally, the Article discusses the implications of this analysis on congressional oversight, litigation, and the separation of powers.