Post-Chevron Deference in Asylum Proceedings

The Supreme Court held for four decades that Chevron deference should apply in all immigration proceedings. How, then, will asylum proceedings change in a post-Chevron world? When, and under what circumstances, will courts continue to defer to the findings of immigration judges and the Board of Immigration Appeals (BIA)? And why does it matter? This Article answers those questions. These issues require urgent examination for three reasons. First, they directly confront an issue pending before the U.S. Supreme Court in Urias-Orellana v. Bondi: Without the protection of Chevron insulating BIA decisions from meaningful judicial review, can certain legal questions like the definition of “persecution” be recast as fact questions requiring statutory deference from the courts? Those with an institutional interest in aggregating agency power over asylum matters, including the attorney general, have taken this exact approach. Second, the contours of post-Chevron power sharing between the executive branch and the federal courts are only beginning to be drawn, and this exercise will continue for years, if not decades. Nowhere is the issue more salient than in asylum law, where courts have traditionally granted multilayered deference to the executive branch, but where agency interpretation of ambiguous statutory provisions has been met with withering criticism from courts and scholars alike. The sixfold increase in asylum applications this decade further highlights the importance of articulating an appropriate post-Chevron role for judicial review in asylum cases. Third, the extent to which courts may reclaim interpretive power in asylum proceedings will prove to be a matter of urgent and enduring importance in light of the current administration’s open attempts to unilaterally restrict asylum eligibility to a desirable subset of applicants, arguably in violation of international law, court and agency precedent, and (to use the language of Chevron) reasonable constructions of the refugee statute

Trump\u27s War on Diversity, Equity, and Inclusion

Among the many head-spinning developments that have occurred from the first days of President Trump’s second presidency are his attacks on DEI (diversity, equity, and inclusion), including anti-DEI edicts targeting educational institutions. This article provides a chronology and analysis of the early 2025 Trump administration’s attacks on DEI targeting schools nationwide, the resulting harms, and responses thereto, including litigation. A discernible refrain in the early litigation challenging President Trump’s anti-DEI attacks targeting educational institutions across the country has been how those attacks cross a clear constitutional line: the prohibition of unconstitutionally obscure governmental mandates. At its core, the void-for-vagueness doctrine protects against three dangers corresponding with three key constitutional values central to the doctrine: the dangers of (1) denying fair notice and warning to those subject to laws (implicating core due process values); (2) arbitrary or discriminatory enforcement of laws (implicating equal justice principles); and (3) chilled speech (implicating First Amendment freedoms).  Trump’s sweeping attacks on diversity, equity, and inclusion have resulted in each of these dangers coming to fruition, undermining vital constitutional values in the process. While being unconstitutionally vague, Trump’s anti-DEI mandates also implicate interrelated separation of powers concerns, as the Trump administration increasingly attempts to usurp powers constitutionally allocated to other branches of government. Consequently, Trump’s unpresidential and unprecedented issuance of sweeping anti-DEI mandates poses a substantial threat not just to our academic institutions, but also, more broadly, to the well-being of our constitutional democracy, amounting to “usurpation by obfuscation.”The Trump administration’s attempts to justify its anti-DEI attacks as merely honoring principles of color-blind neutrality conflict with longstanding laws and policies affirmatively honoring and protecting diversity, equity, and inclusion. In the end, this is not a time for neutrality. It is, rather, a time for this country’s courts, legislative bodies, and community members alike to unequivocally resist unconstitutional, unjust attacks on diversity, equity, and inclusion

Antitrust & the Immoral Energy Economy

The age of climate change is upon us, but regulations and programs intended to decarbonize the electricity sector have been effectively stymied by utilities defending their monopoly power. The lack of robust antitrust enforcement against the utilities to date is a result of the belief that regulation is sufficient to police monopoly anticompetitive activity, that the natural monopoly structure of utilities makes them a poor fit for antitrust principles, and that the utilities are immune from Sherman Act claims under the state action exemption. But these rationales reflect a misunderstanding of the purpose of public utility law and its preference for monopolies, and the exemption is narrower than many realize. To provide much-needed clarity, this Article advances a framework to guide the application of state and federal antitrust law to electric utilities. In doing so, it is the first to use the moral economy lens to counter the economic narratives that have contributed to persistent beliefs that protection of the monopolies is necessary for a functioning electricity industry. Understanding the economic organization of the electricity sector through moral economy principles explicates the normative social outcomes that monopolies in the public utilities sphere were intended to achieve. These norms challenge the long-promoted view of electricity utility monopolies as an economic inevitability and provide guidance to the Department of Justice, state attorneys general, and injured par- ties who wish to bring antitrust claims against monopoly utilities

Police Reform as System Justification

System Justification Theory (SJT) provides a useful lens through which to critique recent police reform efforts. SJT posits that members of society tend to justify and maintain existing social and political systems even when those systems disadvantage them, because the predictability of the status quo provides palliative, epistemic, and existential comfort in what otherwise appears to be an unjust and inequitable societal structure. Contrary to “false consciousness” theories, SJT claims that disadvantaged groups may intentionally rationalize what they know to be an unfair status quo, because doing so reduces social anxiety and threat while providing much desired order and meaning to structurally or systemically broken systems. One such broken system—the American policing machine—continues to enjoy broad system justifying support from advantaged and disadvantaged groups alike, despite incontrovertible evidence of the system’s unfairness, ineffectiveness, and inefficiency. This contention may seem at odds with the fact that policing also receives among the most vocal and sustained criticism and calls for change of any stable political structure in the country. But it is those very “reforms” championed and implemented in recent years that proves the inherent desire to defend and maintain the status quo. This Article provides two novel contributions to legal literature. First, it provides the first SJT-specific critique of policing and its ability to maintain itself, relatively unchanged, despite its long history of racialized violence and class exploitation. Second, it utilizes the SJT framework to explore how purported reforms to the policing status quo are designed to defend that status quo as fundamentally sound and fair. The two most heavily funded and implemented policing reforms since the Summer 2020 uprisings against police violence—procedural justice and predictive policing—serve not to transform the structure of policing by eliminating it or reducing its bias and exploitation, but to justify its inherent authority through the façade of objectivity. These reforms provide a veneer of legitimacy, making it easier to rationalize the unchanged and unjust status quo. At root, SJT reveals that defenses of policing rarely derive from logic or facts, but from deep-seated psychological needs to perceive the world as orderly, safe, and fair. Recognizing these motivations is key to fostering productive dialogue about true transformative change

Private Equity, Public Utility

The explosion of investment in artificial intelligence and cryptocurrencies has spurred a data center boom, with politicians jostling to attract companies to build data centers in their states. The potential financial windfall from these data centers has also attracted the attention of private equity firms, which are seeking to capitalize on the potential riches to be made in supplying these projects with electricity by buying regulated public electric utilities. These utilities are unusual in our capitalist system, in that they are subject to both state and federal regulation regarding their duties to serve the public and the amount they can charge for their services. Public utilities have only one source of revenue: their customers. But when a utility is purchased by a private equity company, it becomes one of a portfolio of businesses that the company expects will generate a return on its investment.History has shown that companies that own public utilities in portfolios manipulate filings and finances to maximize profits at the expense of the utilities’ captive customers. When private equity firms, which have no purpose other than to realize the highest possible returns for investors, become owners of public utilities, the risks to ratepayers skyrocket.  This paper is the first to identify this emerging phenomenon and advocate for halting or placing strict conditions on these acquisitions. We do this by showing how investment companies may be able to take advantage of two flawed regulatory systems—the system that regulates utilities and the system that regulates corporations and private investment firms—to extract value from utilities while shifting risks onto ratepayers and society at large